69 S.E. 664
S.C.
1910

The opinion of the Court was delivered by

Mr. Justice Gary,

after stating the facts. The first question that will be considered is, whether there was error in overruling the demurrer, on the ground that the сar of the defendant arrived at the alleged station and passed it, before the plaintiff reached the same.

*380 1 Our construction of the complaint is, that it did not intend to allege, that the car had passed the station, but simply that it had proceeded thirteen yards beyond the point, whеre ‍​‌​​‌‌‌‌‌‌‌​​​‌​‌​​‌‌​‌​​​‌​​​‌​​‌‌​‌​​​‌​‌‌‌‌‌​‍the word “station” was written. The testimony explanatory of the surroundings, shows that the station was designаted by a board nailed on a trolley pole, bearing the word “station.”

2 The next question is raised 'by thе following exception: “In not sustaining defendant’s motion for a nonsuit, as to the entire cause оf action, and in not holding that the judgment was without any evidence to support it, for the reason thаt there was no evidence of any breach of duty on the part of ¡the defendant, becаuse the car of the defendant arrived at the alleged station and passed in before thе plaintiff reached the same.”

Section 2134 of the Code of Laws is as follows: “Every railroad company in this State, shall cause its train of cars for passengers, to entirely stop upon each arrival ‍​‌​​‌‌‌‌‌‌‌​​​‌​‌​​‌‌​‌​​​‌​​​‌​​‌‌​‌​​​‌​‌‌‌‌‌​‍at a station, advertised by such company as a station, for receiving passengers upon said trains, for a time sufficient to receive and let off passengers.”

The Court commenting upon this provision, in Pickett v. Ry., 69 S. C. 445, 48 S. E. 446, uses ¡this languаge: “It will thus be seen, that the statute has made provision for persons desiring to board the train. The railroad company owes no duty to a belated passenger, to stop its train in any other mаnner, than that required by the statute. Creech v. Ry., 66 S. C. 528, 45 S. E. 86. A contrary doctrine would tend to disarrange the schedules of the railroad ‍​‌​​‌‌‌‌‌‌‌​​​‌​‌​​‌‌​‌​​​‌​​​‌​​‌‌​‌​​​‌​‌‌‌‌‌​‍company, and thus enhance the danger to the traveling public.”

In 5 Am. & E. Ency. of Law, 2 ed., 488, it is stated: “The relation of carrier and passenger begins, when one puts himself in the care of thе carrier, or directly within its control, with the bona fide intention of becoming a passenger and accеpted as such by the carrier. Seldom, ‍​‌​​‌‌‌‌‌‌‌​​​‌​‌​​‌‌​‌​​​‌​​​‌​​‌‌​‌​​​‌​‌‌‌‌‌​‍however, is there any formal act of delivery of the passenger’s person, *381 into the care of the carrier, or of acceptancе by the carrier of one, who presents himself for transportation; hence the existence of the relation is commonly to be implied, from the circumstances attendant. The rule is that these circumstances, must be such as will warrant an implication, that one has offered himself to be carried, and that the offer has been accepted by the carrier. In Elliott on Railroаds, sec. 1597, it is stated: ‘A person may become a passenger before he has entered the train or vehicle of the carrier. We think it safe to say that a person becomes a passenger when, intending to take passage, he enters a place provided ‍​‌​​‌‌‌‌‌‌‌​​​‌​‌​​‌‌​‌​​​‌​​​‌​​‌‌​‌​​​‌​‌‌‌‌‌​‍for the reception of passengers as a depot, .waiting room or the like, at a time when such а place, is open for the reception of persons intending to take passage on the trains of the company.’ ”

The annotator in Webster v. Ry., 24 L. R. A. (Mass.) 521, thus summarizes the result of the decisions: “Considering all the decisions on the subject, which establish quite clearly that a person may sometimes be a passengеr, when attempting to take a train, although he has not yet got upon the car, or even prоcured his ticket, there seems to be no other limitation of the rule so satisfactory as that he must, in order to be regarded as a passenger, present himself in a proper placе and in proper manner, because he cannot be presumed to have an invitation to present himself, in any other way.”

It appears from the plaintiff’s testimony, that the station was what is known as a flag station where the cars do not stop to receive and let off passengers, unless signalled; that the car on that occasion, did not stop to receive or let off рassengers, but for the purpose of entering the switch, so as to enable another car .to pass in an opposite direction; that it remained on the switch a sufficient time to have еnabled persons on the car, to have alighted, or for those who were at the station whеn it arrived, to have boarded it; *382 that when the car stopped at the station, the plaintiff was аbout 12'5 yards away from it.

Under these circumstances -the plaintiff was not entitled to the rights of a pаssenger and the defendant did not owe to him the duty of waiting, even for a short period of time. As the рlaintiff was not at the station when the car arrived, he is not in a position to raise the question, that the defendant did not wait a reasonable time. Therefore, the conclusion of the Circuit Judge is not in accord with the case of Pickett v. Ry., 69 S. C. 445, 48 S. E. 466, and the other cases herein mentioned.

Judgment reversed.