207 Ky. 745 | Ky. Ct. App. | 1925
Opinion of the Court by
Reversing.
Appellant, C. & O. Railway Company, prosecutes tbis appeal from a judgment of the Johnson circuit court rendered against it in favor of appellee, Rebecca Mollett, in an action by her against it for personal injuries.'. The facts are these: On December 19, 1922, one of appellant’s regular passenger trains on the Big Sandy division
The question presented is whether or not the relation of carrier and passenger existed and whether or not appellee could recover for her injuries upon the theory that she was the passenger of appellant under the facts and circumstances of the case. Unless the relation existed appellant was entitled to a peremptory instruction at the close of the testimony, because appellee’s cause of action was predicated upon the existence of the relation at the time of the injury and appellant’s violation of the duty it owed to her growing out of that relation. The question presented is a novel one. We have been unable to find a similar case in our research on the question and neither brief has pointed out one to us.
Under the topic of Carriers, considering the question “Who are Passengers?” 10 Corpus Juris, page 610, lays down the following general principles:
“'It is difficult to lay down a comprehensive definition of the word ‘passenger,’ or to exhaust in a single statement all the possible circumstances under which the relation of carrier and passenger may exist; and, although a definition often given is that a passenger is one who travels in some public conveyance by virtue of a contract expressed or implied, with the carrier, as to the payment of fare or that which is accepted as equivalent therefor, this definition, like some others which have been made, does not comprehend all possible situations; for ordinarily every person not an employee, who is carried by the express or implied consent of the carrier on a conveyance usually employed in the carriage of passengers, is presumed to be lawfully on it as a passenger.”
Further in the same work, on page 611, it is said:
“The relation of carrier and passenger is dependent on the existence of a contract of carriage,*748 express or implied, between the carrier and the passenger, made either by themselves or by their respective agents. It is the existence of such a contract which distinguishes1 a passenger from a licensee, a trespasser, an employee of the carrier, an employee of a sleeping car company, and other persons riding in the carrier’s vehicles. A mere contract for future transportation does not of itself create the relation of carrier and passenger, where the person so contracting has not placed himself under the care of the carrier as passenger.
“The relation of carrier and passenger commences when one puts himself in the care of the carrier, or directly within its control, with the bona fide intention of becoming a passenger, and is accepted as such by the carrier, as where he makes a contract for transportation and presents himself at the proper place and in a proper manner to be transported, but not where he does not present himself in a proper way to become a passenger.
“It is not required, however, that there be any formal act of delivery of the passenger’s person into the care of the carrier, or of acceptance by the carrier of one who presents himself for transportation; but the existence of the relation is commonly to be implied from the attendant circumstances; and the rule is that these circumstances, either by the purchase of a ticket or otherwise, must be such as will warrant an implication that he intends to become a passenger and offers himself to be carried, and that the offer is accepted by the carrier. But the mere fact of intention to become a passenger, which intention has. not been by acts or otherwise indicated to the servants of the carrier, does not render the person having such intention a passenger, although he may be entitled to transportation.”
4 R. C. L., sections 470, 471 and 472, beginning on page 1002, announces the general rule as to1 how the relation of carrier and passenger is created in language very similar to that quoted from Corpus Juris above.
It must be conceded that the relation is a contractual one. ’The contract, however, may be implied. We are unable to understand, however, how a contract may be made either expressly or impliedly between a carrier and .a, passenger without some fact or circumstance appear
For these reasons the judgment herein is reversed and this cause is remanded for further proceedings consistent herewith.