Gen. No. 11,303 | Ill. App. Ct. | Oct 4, 1904
delivered the opinion of the court.
First. Under the foregoing statement of facts it is not denied that if deceased was a passenger on defendant’s car plaintiff in error made out a prima facie case and the court erred in directing a verdict of not guilty. The question therefore is, was deceased a passenger ?• “ The relation of carrier and passenger begins 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.” R. R. Co. v. Jennings, 190 Ill. 478" date_filed="1901-06-19" court="Ill." case_name="Chicago & Eastern Illinois Railroad v. Jennings">190 Ill. 478.
Assuming (as to which the proof is not altogether certain) that the boy boarded and stood on the step of the car outside of the gate with the intention of becoming a passenger, it remains to be determined whether he put himself in the care of defendant and was accepted by it as a passenger. There is but seldom 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; hence the existence of the relation is commonly to be implied from the attending circumstances. R. R. Co. v. Jennings, supra. Had the boy stood inside of the car or on either of the platforms or at any place which persons riding on the cars are usually invited or permitted to occupy, there can be no doubt but that an implication would have arisen that the defendant had accepted him as a passenger. He stood at a place where it was not only inconvenient and highly dangerous for him to stand, but where the gate plainly indicated that persons should not stand at all, and from which he could not make his way into the car so long as the gate was in its place. Moreover, the conductor testified (although he was not positive) *'* that there is a printed rule in our (defendant’s) rule book prohibiting any one to ride there.” Both deceased and Ferguson, his companion on the step, appear to have known that it was not a proper place for them to stand.' When the car stopped on the incline of the viaduct, Ferguson said to the boy: “ I bet we will have to get off here.” If the conductor had seen them he would, as he said at the trial, have “ stopped the car and ordered them off.” Under these circumstances we are of opinion that deceased had not put himself in defendant’s care. I. C. R. R. Co. v. O’Keefe, 168 Ill. 115" date_filed="1897-11-01" court="Ill." case_name="Illinois Central Railroad v. O'Keefe">168 Ill. 115.
But even if he had, there is an entire absence of proof that the defendant accepted him as a passenger. Neither he nor Ferguson was seen by the conductor. They paid nb fares and were not asked for any. The conductor, not having seen them, could, of course, not have intended to demand it from them. It is argued, however, that the conditions were such that he must have seen them and that the question whether he did or not should have been submitted to the jury. The conductor testified he did not see them; that he never looked outside of the gate for passengers; and he was a witness called by plaintiff, who thereby vouched for his credibility. Derrick Co. v. Hall, 208 Ill. 597" date_filed="1904-04-20" court="Ill." case_name="American Hoist & Derrick Co. v. Hall">208 Ill. 597. True, he might have contradicted him by other witnesses, but no such attempt was made.
It is also argued that on account of the excessive overcrowding of the car, caused by the temporary blocking of defendant’s other street car line, its rule and practice forbidding persons to get on the car outside of the gate was relaxed on this occasion. No proof whatever of this assertion was offered. Nor is there any proof that persons got on or rode or were allowed to ride there at any other time. No circumstances are shown which would warrant the inference that the defendant had accepted deceased as a passenger.
Second. It is further contended that even if deceased was not a passenger, still it was defendant’s duty to exercise ordinary care for his safety and that it failed in such duty, and reliance is had upon R. R. Co. v. Gruss, 200 Ill. 195" date_filed="1902-12-16" court="Ill." case_name="Chicago Terminal Transfer Railroad v. Gruss">200 Ill. 195, and R. R. Co. v. Kotoski, 199 id. 383. These cases, we think, are not in point. In the case at bar there is no proof tending to show defendant’s consent, express or implied, to the use of the step on which deceased was standing. On the contrary, the position of the gate was such as to be equivalent to a public declaration by the company that persons should not get upon the step or make any use of it. We are inclined to the opinion that deceased was a trespasser, but prefer to rest our decision on the ground that at best he was no more than a mere licensee, to whom defendant owed no duty except to refrain from wilfully or wantonly injuring him. Gibson v. Leonard, 143 Ill. 182" date_filed="1892-10-31" court="Ill." case_name="Gibson v. Leonard">143 Ill. 182; R. R. Co. v. Jones, 163 id. 167; R. R. Co. v. Eicher, 202 id. 556.
The judgment of the Superior Court is affirmed.
Affirmed.