On the same principle a railroad is not a common carrier of one who is received by its servants for carriage on a construction train.1 In such a case the court said: "It is clear that defendant's train was not a passenger train within the meaning of the law, and that plaintiff's intestate was not a passenger, entitled, as a matter of legal right, to ride upon the train. The evidence, favorably stated for the plaintiff, shows that defendant owed no duty to plaintiff's intestate as a passenger." 5 $76. Carriage on freight cars. It often happens, however, that a person is received by the carrier's servant into a vehicle not prepared for passengers, and is permitted to ride there. Such a reception will of course make the person a passenger provided the reception is within the authority of the servant; either because of express permission given by the carrier, or because the reception is within the apparent authority of the servant. A case of the first kind occurs when a railroad is accustomed to carry passengers in freight cars. Where such a custom exists, one received on a freight train is to be regarded as a passenger quite as much as one who rides on an ordinary passenger train. A case of the second kind occurs when passengers are not uncommonly so car 4 McCauley v. Tennessee, C. I. & R. R. Co., 93 Ala. 356, 9 So. 611 (1891); Berry v. Missouri Pac. Ry., 124 Mo. 223, 25 S. W. 229 (1894); Graham v. Toronto, G. & B. Ry., 23 Up. Can. C. P. 541 (1874). 5 Quoted from Berry v. Missouri Pac. Ry., supra. See accord: Shoemaker v. Kingsbury, 12 Wall. (U. S.) 369, 20 L. Ed. 432 (1871); Albion Lumber Co. v. DeNobra, 72 Fed. 739, 44 U. S. App. 347, 19 C. C. A. 168 (1896); Wade v. Futcher, etc., Cypress Lumber Co., 74 Fed. 517, 33 L. R. A. 255, 41 U. S. App. 45, 20 C. C. A. 515 (1896); Menaugh v. Bedford Belt R. Co., 157 Ind. 20, 60 N. E. 694 (1901); Evansville & R. R. R. Co. v. Barnes, 139 Ind. 254, 36 N. E. 1092 (1894); Nashville, etc., R. C. v. Messino, 1 Sneed. (Tenn.) 220 (1853). See San Antonio & A. P. Ry. v. Robinson, 79 Tex. 608, 15 S. W. 584 (1891). Sheerman v. Toronto, etc., Ry., 34 U. C. Q. B. 451 (1874); Graham v. Toronto, etc., Ry., 23 V. C. C. P. 541 (1874); McRae v. Canada Pacific Ry., Montreal, L. R., 4 S. C. 186 (1888). ried on freight trains in that part of the country, and one is permitted to ride on such a train by the conductor. When for any reason the conductor has apparent authority to receive a passenger, and does so, the relation of carrier and passenger is established. In one case it appeared that the passenger was informed by a servant of the carrier that he could not, under the carrier's rules, attach his own freight car to a passenger train and ride in it, as he desired to do; but the servant afterwards permitted it. He was held to be a passenger. If the case can be supported, it must be on the ground that under the circumstances of the case he had reason to suppose that the permission of the carrier had been obtained. 6 FEDERAL COURTS: 7 Hazard v. Chicago, B. & Q. R. R., 1 Biss. 503, Fed. Cas. 6,275 (1865); Reber v. Bond, 38 Fed. Rep. 822 (1889). STATE COURTS: Illinois-Ohio & M. R. R. v. Muhling, 30 Ill. 9, 81 Am. Dec. 336 (1861); (1883). Missouri-Whitehead v. St. Louis, I. M. & S. Ry., 99 Mo. 263, 11 S. W. R. 751 (1889). Nebraska-Chicago, B. & Q. R. R. v. Troyee, 103 N. W. 680 (Neb. 1905). New Hampshire-Murch v. Concord R. R., 29 N. H. 9, 61 Am. Dec. 631 (1854). New York-Edgerton v. New York & H. R. R. R., 39 N. Y. 227 (1868). Texas-I. & G. N. Ry. v. Irvine, 64 Tex. 529 (1885). So in a similar case of one riding on an engine: Lake Shore & M. S. R. R. v. Brown, 123 Ill. 162, 14 N. E. 197, 5 Am. St. Rep. 510 (1887); or on a gravel train. Lawrenceburgh & U. M. R. R. v. Montgomery, 7 Ind. 474 (1856). 7 Lackawanna & B. R. R. v. Chenowith, 52 Pa. 382 (1866). 877. Carriage in a place not intended for passengers. When a person desiring to be transported enters a car or other part of a railroad train not intended for passengers, he does not thereby accept the carrier's invitation; and if there is no express acceptance of him as a passenger he is not entitled to be so treated. In a Texas cases it appeared that an intending passenger, having money to pay his fare, came late to the station, and was just able to get on board the front platform of the first car as the train started. This proved to be the front platform of a baggage car. The fireman, discovering him, compelled him to jump off by turning hot water from a hose on him; and in jumping he was injured. The Court of Civil Appeals held that he could recover as a passenger. "While," they said, "the place one may be occupying upon the train at the time of his injury may be important in determining whether or not he intended to pay his fare, it does not conclusively fix his status, either as a passenger or a trespasser. It may be conceded that a person found in the position occupied by Eaton Williams at the time he was injured is subject to the suspicion of being a trespasser; but if such person, having the means and intending to pay his fare, can, as Eaton Williams in this case did, give a reasonable excuse for why he was not in a passenger coach, he will, in law, be a passenger, and entitled to protection against the wrongful acts of the railroad company and its employes. Neither the carrier nor its employes can assume that a person on any car of a passenger train is a trespasser, and, if they treat him as a trespasser merely because he is not in one of the cars provided for, and usually occupied by, a passenger, and injury results therefrom, and the facts show that he is a passenger, the railroad company will be liable." This decision was however reversed on appeal to the Supreme Court. One One may become a passenger, the court said, by either 8 Missouri, K. & T. Ry. v. Williams (Tex. Civ. App.) 40 S. W. 350 (1897). an express or an implied contract. There was no express contract in this case; and "in order to raise such an implied contract, the party desiring to be carried by the railroad company must take passage on that part of the train provided by it for carrying passengers." 9 § 78. Whether there is acceptance in such cases. A case almost identical in its facts was decided in South Carolina between the first decision and the appeal in the Texas case; and largely on the authority of the Texas Court of Civil Appeals the plaintiff was held to be a passenger.10 Chief Justice McIver dissented, taking the same ground on which the Supreme Court placed itself in the Texas case. If, he said," the plaintiff, with his ticket in his pocket, had got on the pilot, or the engine itself, or upon the tender, or upon the express car, it certainly could not, with any propriety, be said that he had thereby established the relationship of passenger between himself and the company. Why? Simply because such places are not the proper places for passengers to be received or transported; and it seems to me that the same may be said of a baggage car. If, then, the relationship of passenger and carrier had not been established between plaintiff and defendant at the time of the accident, it is clear that the defendant company owed no duty to the plaintiff except such as it might owe him as a trespasser. The reasoning of the dissenting opinion is hard to resist. The case is not like that of taking a wrong train by mistake; for there the person gets into a car intended for passengers, while here, as the chief justice pointed out, he knew that a baggage 9 Missouri K. & T. Ry. v. Williams, 91 Tex. 255, 42 S. W. Rep. 855 (1897). It is hard to see how the defendant could escape liability under the circumstances even by proving that the plaintiff was not a passenger; since the injury was wanton, and was apparently inflicted in the carrier's service. 10 Martin v. Southern Ry., 51 S. C. 150, 28 S. E. Rep. 303 (1897). car was not prepared for the reception of passengers. The haste with which the plaintiff took the train has prevented him from so taking it as to make himself a passenger by bringing himself within the terms of the company's invitation. Yet it must be clear that he can be treated in no worse way than an innocent trespasser; and if wantonly injured by a servant of the company in the course of his employment, the carrier should be liable. It was urged in the dissenting opinion in the South Carolina case that the servant was not acting in the course of the employment; but this view would seem to be mistaken. The same facts came up in Illinois, and it was held that the person did not become a passenger by getting safely upon the platform.11 "A passenger must put himself in the care of the railroad company, and there must be something from which it may fairly be implied that the company had accepted him as a passenger." The distinction is to be noted between persons who having once become passengers then go without permission of the company into some place not provided for passengers, and persons who, intending to become passengers, go in the first instance to such a place. While the latter do not technically become passengers at all, since they never place themselves within the terms of the carrier's offer to receive them, 12 persons who have already become passengers do not forfeit that position by going into some car or some part of a car in which passengers are not allowed to ride. Such conduct may be negligent, and if the negligence contributes to an injury it may therefore bar recovery for the injury; but the recovery cannot be denied on the ground that the injured person was not a passenger. 13 11 Illinois Cen. R. R. v. O'Keefe, 168 Ill. 115, 48 N. E. 294, 61 Am. St. Rep. 68, 39 L. R. A. 148 (1897). 12 Bricker v. Campbell, 132 Pa. 1, 18 Atl. 983 (1890). 13 Kentucky C. R. R. v. Thomas, 79 Ky. 160, 42 Am. Rep. 208 (1880) (express car); Bard v. Pennsylvania Traction Co., 176 Pa. 97, 34 Atl. 953, 53 Am. St. Rep. 672 (1896) (bumper of street car); Little Rock |