A case of the second kind occurs when passengers are not uncommonly so carried on freight trains in that part of the country, and one is permitted to ride on such a train by the conducWhen for any reason the conductor has apparent authority to receive a passenger, and does so, the relation of carrier and passenger is established.1

If a passenger is received by a servant of the carrier in a vehicle in which he knows that he has no right to ride, and that the conductor has no authority to permit him to ride, he does not become a passenger whether he pays fare or not. Thus where the conductor informs him that passengers are forbidden to ride on a freight train, but he persuades the conductor to let him ride nevertheless, he is not a passenger. And on the same principle one is not a passenger who by permission of the carrier's servant or otherwise rides on a locomotive, a hand car, a flat car, or a construction train. In one case it appeared that the passenger was informed by a servant of the carrier that he could not, under the carrier's rules, attach his own freight car to a passenger train and ride in it, as he desired to do; but the servant afterwards permitted it. He was held to be a passenger. If the case can be supported, it must be on the ground that under the circumstances of the case he had reason to sup ose that the permission of the carrier had been obtained.

60 Miss. 726; Murch v. Concord R. R., 29 N. H. 9; Edgerton v. New York & H. R. R., 39 N. Y. 227; I. & G. N. Ry. v. Irvine, 64 Tex. 529. So in a similar case of one riding on an engine: Lake Shore & M. S. R. R. v. Brown, 123 Ill. 162, 14 N. E. Rep. 197; or on a gravel train: Lawrenceburgh & U. M. R. R. v. Montgomery, 7 Ind. 474.

1 Dunn v. Grand Trunk Ry., 58 Me. 187; Ohio V. Ry. v. Watson, 93 Ky. 654, 21 S. W. Rep. 244; Lucas v. Milwaukee & S. P. Ry., 33 Wis. 41; Washburn v. Nashville & C. R. R., 3 Head (Tenn.) 638; Everett v. Oregon, S. L. & U. N. Ry., 9 Utah 340, 34 Pac. Rep. 289.

2 Stalcup v. Louisville, N. A. & C. Ry, 16 Ind. App. 584, 45 N. E. Rep. 802; Powers v. Boston & M. R. R., 153 Mass. 188, 26 N. E. Rep. 446; Eaton v. Delaware, L. & W. R. R., 57 N. Y. 382; Louisville & N. R. R. v. Hailey, 94 Tenn. 383, 29 S. W. Rep. 367; Houston & T. C. R. R. v. Moore, 49 Tex. 31; Gulf, C. & S. F. Ry. v. Campbell, 76 Tex. 174, 13 S. W. Rep. 19.

Files v. Boston & A. R. R., 149 Mass. 204, 21 N. E. Rep. 311; Stringer v. Missouri Pac. Ry., 96 Mo. 299; Rucker v. Missouri Pac. R. R., 61 Tex. 499.

Hoar v. Maine Central R. R., 70 Me. 65.

Higgins v. Cherokee R. R., 73 Ga. 149 (semble); Snyder v. Natchez R. R. & T.

R. R., 42 La. Ann. 302, 7 So. Rep. 582.

McCauley v. Tennessee, C. I. & R. R. Co, 93 Ala. 356, 9 So. 611; Graham v. Toronto, G. & B. Ry., 23 U. C. C. P. 514.

7 Lackawanna & B. R. R. v. Chenowith, 52 Pa. 382.

1

Stealing a Ride.

One who steals a ride upon a vehicle of the carrier, that is, conceals himself, intending to evade fare, is not to be regarded as a passenger; 1 and the same thing is true where a person gets on board the carrier's vehicle, refuses either to pay fare or to leave the vehicle, and succeeds in staying on the vehicle by force. In a case of this sort a person entered a stagecoach with a revolver and compelled the driver to allow him to ride without payment of fare. The coach broke down, and he was injured and sued for damages; but it was held that he was not a passenger and could not recover damages.2

So where a person is riding on a train, having used or intended to use a ticket which he knows he has no right to use, and concealing or intending to conceal that fact from the conductor, he is not to be regarded as a passenger, even if the conductor permits him to ride. The consent of the conductor to accept the ticket is not material if the consent was obtained by fraud; though probably if knowing the facts the conductor allowed the substitution, the person so allowed to ride would be a passenger; and clearly, if the carrier habitually permitted such substitution, in spite of the exact terms of the ticket, the person using it in accordance with the custom would be a passenger."

4

A child traveling with an older person who refuses to pay his fare is not entitled to be regarded as a passenger.

This doctrine seems unassailable, though the English Court of Queen's Bench refused to say that the fraud of the older person would prevent the child becoming a passenger. And where the older person bona fide fails to pay for the child, though under

1 State v. Baltimore & O. R. R., 24 Md. 84; Huehlhausen v. St. Louis R. R., 91 Mo. 332, 2 S. W. Rep. 315; Chicago B. & Q. R. R. v. Mehlsack, 131 Ill. 61, 22 N. E. Rep. 812; Planz v. Boston & A. R. R., 157 Mass. 377, 32 N. E. Rep. 356; Barry v. Union Ry. (N. Y. App. Div.), 94 N. Y. Supp. 449.

2 Higley v. Gilmer, 3 Mont. 90.

3 Way v. Chicago, R. I. & P. Ry., 64 Ia. 48 (non-transferable mileage-book issued to another); Union Pac. Ry. v. Nichols, 8 Kan. 505 (fraudulent impersonation of express messenger); Toledo W. & W. R. R. v. Beggs, 85 Ill. 80 (non-transfera. ble free pass issued to another).

4 Way v. Chicago, R. I. & P. Ry., supra.

5 Great Northern Ry. v. Harrison, 10 Exch. Rep. 376.

6 Beckwith v. Cheshire R. R., 143 Mass. 68, 8 N. E. Rep. 875.

7 Blackburn, J., in Austin v. Great Western Ry., L. R. 2 Q. B. 442, 446.

the rules of the company a fare is due from a child of that age, the child has been held a passenger.1

It sometimes happens that a person enters a carrier's vehicle prepared to pay fare if it is demanded, but hoping to escape the notice of the conductor and so avoid paying fare. It is hard to see how this form of fraud differs from that of a person riding on a non-transferable ticket issued to another; and the better view would seem to be that such a person is not a passenger until by paying his fare he is received as such by express consent of the conductor. Before being so expressly received, he can make himself out a passenger only by bringing himself within the terms of the invitation; and no invitation is extended to persons to enter the vehicle and try to "beat" the company. In a New York case, however, this view was not taken. It appeared in that case that the plaintiff had paid her fare, and taken passage on a ferryboat across a river, but on arriving at the other side, instead of leaving the boat, had crossed back again, without the payment of an additional fare. It was assumed that the fare paid on entering the boat covered only a single passage. It was held that since she did not attempt to conceal herself on the boat she was a passenger on the return trip. The court said:

"She remained on the boat; did not go ashore, so as to pass through the gate at the landing. The employes of the company saw her there, and it was their business to demand her fare, if they intended to charge her. Their doing so would not render her liable to be held guilty of negligence, or of being carried gratuitously, so as not to render the company liable for damages arising through negligence on their part." 2

However that may be, it is clear that if the traveler in such a case takes any step to conceal himself from the conductor he will not become a passenger. In one case of this sort it appeared that two persons were shipping horses over a railroad, and that by the laws of the road, as they knew, only one person was entitled to be carried free with the horses. A drover's ticket was issued to one of them. The other also entered the stock car with the horses, having no ticket, but afterwards asserted that he was ready to pay his fare upon demand. The conductor would not ordinarily come to a stock car to collect fares from passengers. The court held, and it would seem rightly, that the person riding without a ticket

1 Austin v. Great Western Ry., L. R. 2 Q. B. 442.

* Barnard, J., in Doran v. East River Ferry Co., 3 Lans. (N. Y.) 105.

was not a passenger.1 The general question whether a person riding without a ticket but expressing his readiness to pay fare if called upon is a passenger or not is a question of fact.2

Guest of a Servant of the Carrier.

One who is riding in the carrier's vehicle, not as ordinary passengers ride, but upon invitation of the carrier's servant, without paying fare, is not a passenger; his relation is with the servant, not with the carrier.3

Thus, where a yardmaster out of hours took an engine and car without permission of the defendant company, and invited persons to ride free in the car to a meeting, over a portion of the road not used for passenger trains, he was held not to have even apparent authority to act for the company, and the persons so riding were not passengers. And where a party of children were invited by a servant of the carrier to ride on a train which was being shifted through the yard, they were not passengers.5

In a few cases, however, it has been held that children riding on a vehicle by invitation of a servant of the company are entitled to be regarded as passengers. Thus, where the driver of a street car invited children to ride on the front platform, they were held to be passengers; and where a conductor invited a boy to ride in a freight train (on which passengers were sometimes carried) the boy was held to be a passenger. But these cases can hardly be supported on this point. The children concerned were clearly

1 Gardner v. New Haven & N. Co., 51 Conn. 143.

2 Ramm v. Minneapolis & S. L. R. R., 94 Ia. 296, 62 N. W. 751 (passenger on freight train, intending to pay fare, climbs on flat car because platform of caboose is crowded). 3 Waterbury v. New York, C. & H. R. R. R., 17 Fed. Rep. 671 (riding on engine by consent of engineer); Atchison, T. & S. F. R. R. v. Headland, 18 Col. 477, 33 Pac. Rep. 185 (conductor induced to let plaintiff ride free on freight train); Toledo, W. & W. Ry. v. Brooks, 81 Ill. 245 (conductor induced to let plaintiff ride free on passenger train); Chicago & A. R. R. v. Michie, 83 Ill. 427 (riding on engine by consent of engineer); McVeety v. St. Paul, M. & M. Ry., 45 Minn. 268, 47 N. W. Rep. 809 (riding free on freight train); Woolsey v. Chicago, B. & Q. R. R., 39 Neb. 798, 58 N. W. Rep. 444 (riding on engine by consent of fireman, to shovel coal); Robertson v. New York & E. R. R., 22 Barb. (N. Y.) 91 (riding on engine by consent of engineer).

4 Chicago, S. P. M. & O. Ry. v. Bryant, 65 Fed. Rep. 969.

5 Reary v. Louisville, N. O. & T. Ry., 40 La. Ann. 32, 3 So. Rep. 390.

6 Wilton v. Middlesex R. R., 107 Mass. 108; Muehlhausen . St. Louis R. R., 91 Mo. 332, 2 S. W. Rep. 315; Buck v. Power Co., 108 Mo. 185, 18 S. W. Rep. 1090.

7 St. Joseph & W. R. R. v. Wheeler, 35 Kan. 185, 10 Pac. Rep. 461; Sherman v. Hannibal & S. J. R. R., 72 Mo. 62 (semble); Whitehead v. St. Louis, I. M. & S. Ry., 99 Mo. 263, 11 S. W. Rep. 751.

guests of the servant, not of the carrier. However far the apparent authority of a conductor may be held to extend, it cannot cover an invitation to ride free; free carriage is not the carrier's business.

If one riding free by invitation of a servant is not a passenger, a fortiori one who by misrepresentation induces the servant to let him ride free is not a passenger;1 and still more clearly one who bribes the servant by a small fee to let him ride without paying the regular fare is not a passenger.2

It will be noticed that the cases follow closely the principle laid down at the beginning of this article; and that to prove himself a passenger one must prove either actual acceptance as such by a servant having authority, or else an exact compliance with the terms of an invitation extended by the carrier to the public.

Joseph H. Beale, Jr.

CAMBBIDGE, MASS.

1 Condran v. Chicago, M. & S. P. Ry., 67 Fed. Rep. 522.

2 McNamara v. Great Northern Ry., 61 Minn. 296, 63 N. W. Rep. 726; Janny v. Great Northern Ry., 63 Minn. 380, 65 N. W. Rep. 450; Brevig v. Chicago, S. P. M. & O. Ry., 64 Minn. 168, 66 N. W. Rep. 401.