injuries; and appellee was charged with the duty of using that high degree of care to protect him from injury which a very careful, prudent, and competent person would have used under like circumstances. It may often be difficult to determine just when the relation of carrier and passenger begins, and what acts of the parties are necessary to create such relation, but there are certain well-established general principles by which the facts of each particular case must be tested. The relationship may arise before the person desiring to become a passenger actually gets on the conveyance of the carrier, and it may continue after he leaves the conveyance, but it can only be created by contract between the parties, expressed or implied.

From the nature of the business conducted by street car companies, no express contract of carriage is made with the great majority of those who ride on their cars, and the essential elements of the contract-the offer and its acceptance-must ordinarily be implied from the acts of the parties. When a person desiring to become a passenger upon a street car stations himself at a place where the cars are accustomed to receive passengers, and signals or calls to the motorman of an approaching car to stop the car, and such signal is seen by the motorman, and the car halted, an acceptance of the offer to become a passenger will be implied from the act of the motorman in stopping the car, and such person will be regarded as a passenger while he is in the act of getting upon the car. If in such case the person desiring to become a passenger attempts to board the car before it comes to a full stop, he is not necessarily guilty of contributory negligence; and, if the speed of the car was slackened to such an extent as to lead him to believe that it was being stopped to allow him to get on, and a person of ordinary care would have so believed, and have attempted to get upon the car, he should be regarded as a passenger while making such attempt.1

10

It is immaterial that the motorman may not have intended to stop the car for the purpose of allowing the passenger to get on. If the latter was at a place where passengers were usually received, and gave the usual signal, which was seen by the motorman, and he thereupon slackened the speed of the car to such an extent as to lead a person of ordinary care to believe that he was thereby invited to become a passenger, such relationship would be created; the motorman not giving any warning that the car was not being stopped for the purpose of receiving passengers. Under such circumstances, the carrier would not be heard to say it had not given an implied acceptance of the offer to become a passenger.

It is a universal rule of law that one cannot disclaim responsibility for the consequences which usually and naturally result from his

10 Acc. No. Chicago St. R. Co. v. Williams, 140 Ill. 275, 29 N. E. 672 (1892); Balt. Trac. Co. v. State, 78 Md. 409, 28 Atl. 397 (1894); O'Mara v. St. Louis. Transit Co., 102 Mo. App. 202, 76 S. W. 680 (1903).

acts. If the appellant, in the exercise of ordinary care and prudence, could assume that the act of the motorman in checking the car was in response to his signal, and for the purpose of allowing him to board it, in acting upon such assumption and attempting to get on the car he had the right to rely upon the performance by the motorman of his duty to use that high degree of care to protect him from injury which the law requires a carrier to exercise for the safety of its passengers. In other words, if the act of the motorman, who had seen appellant's signal, reasonably induced appellant to believe that he was accepted as a passenger, while so believing he was entitled to protection as such.

*

* *

The jury might have concluded that the act of the motorman in increasing the speed of the car before appellant had succeeded in his attempt to board it was not, under the circumstances, a failure to use ordinary care, since that act could not be held negligence as a matter of law. * * *

Reversed.11

11 One is ordinarily entitled to the care due a passenger if he enters a train at a station, though without the carrier's knowledge. Choate v. Mo. Pac. Ry. Co., 67 Mo. App. 105 (1896). Or while entering a street car standing at a corner. Kane v. Cicero, etc., Co., 100 Ill. App. 181 (1902). But compare Foster v. Seattle Elec. Co., 35 Wash. 177, 76 Pac. 995 (1904). But not while boarding a railroad train without the carrier's knowledge at a place not a station, though the train has stopped because he flagged it. Ga. Pac. Ry. v. Robinson, 68 Miss. 643, 10 South. 60 (1891). Nor while attempting to board a moving train leaving a station. Merrill v. Eastern R., 139 Mass. 238, 1 N. E. 548, 52 Am. Rep. 705 (1885). In the latter case, Holmes, J., said: "We may admit that if he had reached a place of safety, and seated himself inside the car, the bailment of his person to the defendant would have been accomplished, and that he would not have been prevented from asserting such rights because of his improper way of getting upon the train. But we think that he could not assert them until he had passed the danger which met him at the threshold, and had put himself in the proper place for the carriage of passengers."

So one is not ordinarily a passenger while boarding a moving street car without the carrier's knowledge. Schepers v. Union Depot Co., 126 Mo. 665, 29 S. W. 712 (1895). Or while boarding a car which is coming to a stop for one, if there is no indication of a present readiness to permit passengers to enter. Schaefer v. St. Louis Co., 128 Mo. 64, 30 S. W. 331 (1895). Or while boarding a train stopped only to let passengers off, though he supposes it stopping to receive passengers. Jones v. B. & M. R. Co., 163 Mass. 245, 39 N. E. 1019 (1895). But one may be a passenger, though on a wrong train by mistake. Lewis v. Del. & H. Canal Co., 145 N. Y. 508, 40 N. E. 248 (1895). One, however, who by mistake entered a car bound for the car house and not intended for passengers was held not to be a passenger. Robertson v. Bost, etc., Co., 190 Mass. 108, 76 N. E. 513, 3 L. R. A. (N. S.) 588, 112 Am. St. Rep. 314 (1906).

In Chicago & E. I. R. Co. v. Jennings, 190 Ill. 478, 60 N. E. 818, 54 L. R. A. 827 (1901), plaintiff's intestate was struck and killed by defendant's train, as he was crossing its track on the sidewalk of a public street on his way to take his usual morning train, then standing at the station a short distance away. He had a ticket in his pocket. A platform for the use of passengers began at the sidewalk just on the other side of the track, and ran alongside the track in front of the station. The declaration was founded upon the carrier's duty to its passenger. It was held that these facts did not show plaintiff to be a passenger, and that, if not such, there could be no recovery. Cartwright, J., said: "In June v. Railroad Co., 153 Mass. 79, 26 N. E. 238,

DUCHEMIN v. BOSTON ELEVATED R. CO.

(Supreme Judicial Court of Massachusetts, 1904. 186 Mass. 353, 71 N. E. 780, 66 L. R. A. 980, 104 Am. St. Rep. 580.)

BARKER, J.12 The action is for a personal injury occasioned by the fall of a trolley pole and car sign. The case stated in the declaration is that, as the car approached the plaintiff, he went toward it for the purpose of entering it, having given the motorman in control notice. of his intention so to become a passenger, and that as he was about to get on the car the trolley pole fell, striking a sign upon the car, and the pole and sign struck the plaintiff; he being in the exercise of due care, and the defendant negligent. * * *

After a verdict for the plaintiff, the case is before us upon the defendant's exception to the refusal of the judge to give the rulings requested, and upon an exception to the portions of the charge which stated that a person may have the rights of a passenger as he approaches a street car, and the degree of care owed to a person under those circumstances. * * *

This leaves as the turning point of the case the question whether a foot traveler on the highway, who is approaching a street car stopped to receive him as a passenger, and before he actually has reached the car, is entitled to the rights of a passenger in respect of that extraor

*

a person was walking towards the station on a plank walk, on the premises of the railroad company, intending to take a train, and was struck by another train. The court held that he was not a passenger, and said that argument was not necessary to show that a man walking towards a railroad station, with the intention of buying a ticket and taking a train after he got there, was not a passenger, even if he might be in the same place if he had begun his journey. If the relation has never been entered into, the question is not the same as where a passenger may rightfully be without ceasing to be a passenger after the relation has been assumed. * Since a railroad company owes the duty of protection to its passengers, it seems plain that the circumstances must be such that the company will understand that such a person is a passenger in its care and entitled to its protection. The company certainly has a right to know that the relation and duty exists, and the passenger must be at some place provided by the company for passengers, or some place occupied or used by them in waiting for or getting on or off trains. Whenever a person goes into such a place with the intention of taking passage, he may fairly expect that the company will understand that he is a passenger and protect him. If he could be a passenger before reaching such a place, there would be no limit or place where it could be said that he became a passenger. The intention of taking a train would only prove a purpose to enter into the contract relation, but would not create it. Any person walking towards a train on a public sidewalk might have no intention whatever of taking the train, but might have an intention to keep on along the street. So long as a person merely intends to be carried, but has not reached any place provided for passengers or used for their accommodation, he is not a passenger."

See, further, as to when one at a railroad station is a passenger. Poucher v. N. Y. C. R. Co., 49 N. Y. 263, 10 Am. Rep. 364 (1872); Chicago, etc., Co. v. Chancellor, 60 Ill. App. 525 (1895); Andrews v. Yazoo & M. V. R. Co., 86 Miss. 129, 38 South. 773 (1905); 21 Harvard Law Rev. 252–254.

12 Parts of the opinion are omitted."

dinary degree of care due to passengers from common carriers, at least so far as any defect in that car is concerned. In other words, the question is whether the jury should have been instructed that the defendant owed to the plaintiff the same high degree of care while he was approaching the car, and had not yet reached it, that it would owe to a passenger. It is apparent that a person in such a situation is not in fact a passenger. He has not entered upon the premises of the carrier, as has a person who has gone upon the grounds of a steam railroad for the purpose of taking train. He is upon a public highway, where he has a clear right to be independently of his intention to become a passenger. He has as yet done nothing which enables the carrier to demand of him a fare, or in any way to control his actions. He is at liberty to advance or recede. He may change his mind, and not become a passenger. Certainly the carrier owes him no other duty to keep the pavement smooth, or the street clear of obstructions to his progress, than it owes to all other travelers on the highway. It is under no obligations to see that he is not assaulted, or run into by vehicles or travelers, or not insulted or otherwise mistreated by other persons present. Nor do we think that as to such a person, who has not yet reached the car, there is any other duty, as to the car itself, than that which the carrier owes to all persons lawfully upon the street.

There is no sound distinction as to the diligence due from the carrier between the case of a person who has just dismounted from a street car and that of one who is about to take the car, but has not yet reached it. In the case of each the only logical test to determine the degree of care which the person is entitled to have exercised by the street railway company is whether the person actually is a passenger, or is a mere traveler on the highway. We think that a present intention of becoming a passenger as soon as he can reach the car neither makes the person who is approaching the car with that intention a passenger, nor changes as to him the degree of care to be exercised in respect of its cars as vehicles to be used upon a public way with due regard to the use of the same way by others. The defendant incurs no responsibility to exercise extraordinary diligence by making an express contract, but only by its exercise of the calling of a common carrier; and its obligation as such does not arise until the intending passenger is within its control.

We are unwilling to go farther than the doctrine stated in Davey v. Greenfield Street Railway Co., 177 Mass. 106, 58 N. E. 172, that, when there has been an invitation on the part of the carrier by stopping for the reception of a passenger, any person actually taking hold of the car and beginning to enter it is a passenger. See Gordon v. West End Street Railway Co., 175 Mass. 181, 183, 55 N. E. 990, and cases cited. If the instructions allowed the jury to find for the plaintiff only in case the car had reached a usual stopping place, and had stopped to receive him, there was error in ruling that under those cir

cumstances, and before he had actually reached the car, he had a right to have the defendant exercise as to him that extraordinary degree of care due to passengers. So long as he remained a mere traveler on the highway, although walking upon it for the sole purpose of taking the car, the defendant did not owe him any other duty than that which it owed to any person on the highway. Whether one just has dismounted from a street car, or just is about to board one, he does not have the rights of a passenger.

Exceptions sustained.13

SECTION 2.-WHEN LIABILITY ENDS

ADAMS EXPRESS CO. v. DARNELL.

(Supreme Court of Judicature of Indiana, 1869. 31 Ind. 20, 99 Am. Dec. 582.)

FRAZER, J.1 This was a suit against the appellant as an express carrier, by the appellee, to recover the value of United States bonds to the amount of $21,000, intrusted by the appellee to the express company, to be conveyed from Indianapolis to the village of Waldron, consigned to the appellee, and lost by the negligence of the appellant, and not delivered to the plaintiff.

There was an answer in five paragraphs, only two of which need be noticed:

1. General denial.

2. That the defendant kept an agent and office at Waldron, and plaintiff resided there; that W. was a small village to which valuable packages were seldom sent, the express business of the defendant at that point being so small as not to require or justify the defendant in keeping an iron safe, and none was therefore kept there by it, of all which the plaintiff had notice; that when the package was delivered. by the plaintiff to the defendant at Indianapolis the former well knew that by due course of transmission it would arrive at Waldron at noon on the 11th of May, 1866, at which hour it did safely arrive and was ready for delivery to the plaintiff; that the plaintiff was absent from home during all that day, and had no agent there, so that delivery to him in person could not be made on that day during business hours, though the defendant was then ready to make such delivery; that the

18 Acc. Donovan v. Hartford St. Ry. Co., 65 Conn. 201, 32 Atl. 350, 29 L. R. A. 297 (1894). And see Foster v. Seattle Elec. Co., 35 Wash. 177, 76 Pac. 995 (1904). Contra: Smith v. St. Paul, etc., Co., 32 Minn. 1, 18 N. W. 827, 50 Am. Rep. 550 (1884). And see Keator v. Scranton Trac. Co., 191 Pa. 102, 113, 43 Atl. 86, 44 L. R. A. 546, 71 Am. St. Rep. 758 (1899), and a criticism of the principal case in 21 Harvard Law Rev. 256-258.

14 Part of the opinion is omitted.