75 P. 212 | Or. | 1904
after stating the facts in the foregoing terms, delivered the opinion of the court.
A conductor, of course, has charge of the train, and has authority to assign passengers to cars and seats. Ordinarily, if he directs a passenger to take a certain place on the train, the passenger may obey him without losing his status as a passenger, or being guilty of contributory negligence, as a matter of law, unless, perhaps, the place is so obviously unsafe and dangerous that no reasonably prudent person would consent to occupy it, even if directed to do so. But a conductor’s mere knowledge that a person is riding at an unsuitable or exposed place on the train, or one he knows is not designed for carrying passengers, does not make the person a passenger, or charge the carrier with that high degree of care toward him which it owes to one whom it has accepted and agreed to transport as a passenger. Where one has, by entering a car provided by a railway company for that ¡mrpose, become in fact a pas
Again, in Missouri, K. & T. Ry. Co. v. Williams, 91 Tex. 255 (42 S. W. 855), the plaintiff, desiring to return to his home, got on the front platform of a passenger train at one of the stations, because he did not have time to get on elsewhere. He had money with which to pay his fare, and intended to do so, but had no ticket. After the train started the fireman began throwing water on him from a hose, and continued doing so until he jumped off the train and was injured. It was held that he was not a passenger, and could not recover, because he did not take passage on that part of the train provided by the company for carrying passengers. The court, after discussing what constitutes a passenger, and saying that, in order to raise the 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, say: “Notwithstanding the statute permits the payment of fares upon the train, we think it a reasonable regulation for the company to make that it should establish places at which to receive its passengers, and designate coaches for them to ride in. It is proper that the carrier should be notified of the presence of all persons claiming the protection of passengers ; otherwise it would be unable to distinguish between such persons and those who might be trespassers, where they enter portions of the train not used for the carriage of passengers. By this rule the rights óf a carrier and a
In each of them the injured party attempted to board the train at the station, and was therefore, perhaps, a passenger, in the sense that, if he had been injured at the station by the negligence of the defendant, he could have recovered; but his right to recover for any injury received while riding on the train ivas made to depend upon whether the company had accepted and agreed to carry him as a passenger thereon. There is no suggestion in any of the cases that his right to ride on the engine or other exposed place on the train was affected in any way by the fact that he went to the station intending to take passage on the train. Going to a railway station for such purpose only indicates a design to enter into the relation of passenger and carrier, but it does not create it so far as it may relate to the contract of carriage. All the authorities concur that, in order to entitle a person to the rights of a passenger, he must intend to ride in a proper place on the train. “Every person being carried upon a public conveyance usually employed in the carriage of passengers,” says Mr. Hutchinson, “is presumed to be lawfully upon it as a passenger. But if a person, by his own solicitation or by his own consent, is carried upon a vehicle or conveyance which is not used for the purpose of passenger carriage, and this be known to him, there can be no such presumption, although the owner may be a common carrier of passengers by other and different means of conveyance”: Hutchinson, Carriers, § 554. A railway company owes to its passengers the highest possible degree of skill in transporting them, and in the management and operation of the train, and is liable for slight negligence. Therefore, as said by the Supreme Court of Illinois in Chicago & E. Ill. R. Co. v. Jennings, 190 Ill. 478 (60 N. E. 818, 54
In Texas & Pac. Ry. Co. v. Boyd, 6 Tex. Civ. App. 205 (24 S. W. 1086), a passenger who was riding on the engine was injured in a collision; and it was held, in effect, that by voluntarily taking a place upon the train more hazardous than that provided by the carrier for passengers, when such hazard was known, or might have been known by the use of ordinary care, he thereby assumed the risks of the increased danger, and could not recover for an injury received while so riding which would not have been received if he had been at a proper place on the train. In Sanders v. Chicago, R. I. & P. R. Co. 10 Okl. 325 (61 Pac. 1075), the plaintiff went to the railway station, and purchased from defendant’s agent a ticket entitling him to ride on a train then standing at the station. Before he could get on thetrain, however, the vestibule door was closed and locked; and, as he was unable to get the door open, he concluded to ride on the step, which he did for a time, and then fell off and was injured. It was held that he was guilty of contributory negligence, and could not recover, although it would seem that he was compelled to ride on the step or wait for another train. In Railroad Company v. Jones, 95 U. S. 439, the plaintiff, an employé of the defendant, whom, with other employes, it was accustomed to carry to and from his work, was told by the person in charge of the train that they were about to start, and to “jump on anywhere,” and climbed upon the pilot of the locomotive, and
But it is argued that this rule can only apply to persons who voluntarily ride at exposed and dangerous places, and that the plaintiff was not so riding on the engine, but was in some way compelled to do so, and therefore the doctrine has no application to him. There is, however, no evidence showing or tending to show that the plaintiff was compelled or required to ride on the engine by any one having authority to act for the defendant. He came to the station late, and was told by the engineer that the train was about to start, and to get on the engine. But the engineer could not thereby bind the defendant, or require the plaintiff to ride at any particular place. The conductor was in charge of the train, and there is no pretense that he ordered or directed the plaintiff to get on the
It follows from these views that the judgment of the court below must be reversed, and the cause remanded for such further proceedings as may be proper, not inconsistent with this opinion. Hevbrsed.