etc., of the passenger, and the length of the occupancy of the car, are all important in this connection. Clothing, toilet articles, and a reasonable sum of money most clearly would be included.21 Though the meaning of the term in the case of the sleeping car company is necessarily much more restricted, further light on the question will be thrown by the subsequent discussion of the meaning of baggage as to carriers of passengers.22

Liability for Safety and Comfort of Passenger

It is the duty of the sleeping car company to use at least reasonable care to make proper provision for the safety and comfort of the passenger.23 Thus, as to the former, the company must furnish suitable means for entering and leaving the berth." It must supply reasonable toilet facilities,25 and see that the car is properly heated and ventilated.20 It must also awake the sleeping passenger a reasonable time before he is to arrive at his destination.27

The mechanical facilities must be such that they afford reasonable protection and are reasonably safe, or the sleeping car company will be liable.28 Thus, where the falling of a berth injured a passenger, the company was held liable. For negligent acts of

29

quantity of personal effects for her use, comfort, and adornment during the journey, according to her station in life, a carrier or sleeping-car company owes her no duty with respect to valuable jewelry carried by her in a hand bag for transportation merely, without any intention or purpose of using it during the journey; the jewelry under such circumstances not being regarded as baggage. Bacon v. Pullman Co., 159 Fed. 1, 89 C. C. A. 1, 16 L. R. A. (N. S.) 578, 14 Ann. Cas. 516.

21 See cases cited in two preceding notes.

22 See post, chapter XX.

23 NEVIN V. PULLMAN PALACE CAR CO., 106 111. 222, 46 Am. Rep. 688, Dobie Cas. Bailments and Carriers, 297; Hughes v. Pullman's Palace Car Co. (C. C.) 74 Fed. 499; Houston, E. & W. T. Ry. Co. v. Perkins, 21 Tex. Civ. App. 508, 52 S. W. 124; Piper v. New York Cent. & H. R. R. Co., 76 Hun, 44, 27 N. Y. Supp. 593; St. Louis, I. M. & S. R. Co. v. Hatch, 116 Tenn. 580, 94 S. W. 671.

24 Pullman's Palace Car Co. v. Fielding, 62 Ill. App. 577.

25 NEVIN v. PULLMAN PALACE CAR CO., 106 Ill. 222, 46 Am. Rep. 688, Dobie Cas. Bailments and Carriers, 297.

26 Hughes v. Pullman's Palace Car Co. (C. C.) 74 Fed. 499; Edmundson v. Pullman Palace Car Co., 92 Fed. 824, 34 C. C. A. 382.

27 Airey v. Pullman Palace Car Co., 50 La. Ann. 648, 23 South. 512; McKeon v. Chicago, M. & St. P. Ry. Co., 94 Wis. 477, 69 N. W. 175, 35 L. R. A. 252, 59 Am. St. Rep. 910.

28 Pullman's Palace Car Co. v. Fielding, 62 Ill. App. 577; NEVIN v. PULLMAN PALACE CAR CO., 106 Ill. 222, 46 Am. Rep. 688, Dobie Cas. Bailments and Carriers, 297.

29 Jenkins v. Louisville & N. R. Co., 104 Ky. 673, 47 S. W. 761,

its servants, too, exposing the passenger to injury, the company is liable, as where obstructions were left in a dimly lighted aisle, over which a passenger fell and was injured.30

31

The passenger can claim also reasonable protection from assault, annoyance, and insult at the hands of fellow passengers or trespassers. If this could reasonably have been prevented by the servants of the sleeping car company, it is liable. If, however, the assault was, owing to its suddenness and unforeseen character, not preventable by reasonable action on the part of servants of the company, then it is not responsible. 32 The company is liable when the assault is an unjustified one committed by the servant himself, as where the porter made an indecent attack on a woman, who was a passenger in the car.33 For wrongful ejection from the car, or even from a berth, by its agents, the sleeping car company is in like manner liable.

Public Employment

Though the sleeping car company is neither a common carrier nor an innkeeper, its employment is none the less a public one. It therefore must serve all members of the traveling public according to the profession which it makes. As to the class which it will

80 Levien v. Webb, 30 Misc. Rep. 196, 61 N. Y. Supp. 1113.

81 Houston, E. & W. T. Ry. Co. v. Perkins, 21 Tex. Civ. App. 508, 52 S. W. 124; Hill v. Pullman Co. (C. C.) 188 Fed. 497. The failure of the servants of a sleeping car company to keep watch while a passenger was asleep in her berth is a reckless disregard of her safety, and where the passenger was assaulted and robbed the company is liable for punitive and compensatory damages. Calder v. Southern Ry. Co., 89 S. C. 287, 71 S. E. 841, Ann. Cas. 1913A, 894.

82 Connell's Ex'rs v. Chesapeake & O. Ry. Co., 93 Va. 44, 24 S. E. 467, 32 L. R. A. 792, 57 Am. St. Rep. 786.

83 Campbell v. Pullman Palace Car Co. (C. C.) 42 Fed. 484; Pullman Palace Car Co. v. Lawrence, 74 Miss. 782, 22 South. 53. See, also, Pullman Palace Car Co. v. Lawrence, 74 Miss. 782, 22 South. 53, holding the sleeping car company liable when the porter assaulted a man passenger who had called the porter and asked for food.

34 Mann Boudoir Car Co. v. Dupre, 54 Fed. 646, 4 C. C. A. 540, 21 L. R. A. 289; NEVIN v. PULLMAN PALACE CAR CO., 106 Ill. 222, 46 Am. Rep. 688, Dobie Cas. Bailments and Carriers, 297; Pullman Co. v. Custer (Tex. Civ. App.) 140 S. W. 847. A sleeping car company is liable for expulsion of a passenger, due to selling him a sleeping car ticket over a route between two points other than that called for by his railroad ticket, where the ticket was in the possession of the sleeping car company's agent and subject to inspection. Nashville, C. & St. L. Ry. Co. v. Price, 125 Tenn. 646, 148 S. W. 219.

35 NEVIN v. PULLMAN PALACE CAR CO., 106 Ill. 222, 46 Am. Rep. 688, Dobie Cas. Bailments and Carriers, 297; Lawrence v. Pullman's Palace Car Co., 144 Mass. 1, 10 N. E. 723, 59 Am. Rep. 58. Sleeping car service of car

36

serve, the company may make reasonable regulations, both as to berth coupons and railroad tickets, and it may limit its facilities to those holding first-class tickets. But, within the class, no arbitrary or unreasonable distinctions will be permitted. If the company has a vacant berth, this must be furnished to one properly applying for it.87

Liability of Railroad Company

The passenger in the sleeping car becomes none the less a passenger of the railroad company and loses none of his rights as such passenger. The sleeping car is made by the carrier a part of its train, so that for what goes on in the sleeping car, the carrier also is responsible and thus a cumulative remedy is afforded to the passenger. The carrier cannot escape liability by contracting with another party to supply facilities for transporting the passenger. Hence the carrier is liable practically as if it owned and operated the sleeping car. The employés of the sleeping car company are for the time the servants of the carrier, for whose acts the carrier, too, may be compelled to answer. Hence, in the case of negligence or willful wrong of the porter, resulting in injury to the person of the passenger, or loss of his proper baggage, or even

40

riers is a public service, on which the state may impose reasonable regulations for the common good, subject to the constitutional limitations for protection of rights to life, liberty, and property. State v. Chicago, M. & St. P. R. Co., 152 Wis. 341, 140 N. W. 70.

36 Lemon v. Pullman Palace Car Co. (C. C.) 52 Fed. 262; Lawrence v. Pullman's Palace Car Co., 144 Mass. 1, 10 N. E. 723, 59 Am. Rep. 58.

37 Searles v. Mann Boudoir Car Co. (C. C.) 45 Fed. 330; NEVIN v. PULLMAN PALACE CAR CO., 106 Ill. 222, 46 Am. Rep. 688, Dobie Cas. Bailments and Carriers, 297.

38 Pennsylvania Co. v. Roy, 102 U. S. 451, 26 L. Ed. 141; Jones v. St. Louis S. W. Ry. Co., 125 Mo. 666, 28 S. W. 883, 26 L. R. A. 718, 46 Am. St. Rep. 514; Cleveland, C., C. & I. R. Co. v. Walrath, 38 Ohio St. 461, 43 Am. Rep. 433.

39 Kinsley v. Lake Shore & M. S. R. Co., 125 Mass. 54, 28 Am. Rep. 200; Robinson v. Chicago & A. R. Co., 135 Mich. 254, 97 N. W. 689; Missouri, K. & T. R. Co. v. Maxwell (Tex. Civ. App.) 130 S. W. 722. Agents and servants of a sleeping car company on its cars, which are attached to and become part of the system of transportation used by a railroad company, are agents of the railroad company; and if a passenger on such a car is injured by the negligence of servants of the sleeping car company, the railroad company is liable in the same way and to the same extent as if the injury had occurred on its ordinary passenger coaches. Nelson v. Illinois Cent. R. Co., 98 Miss. 295, 53 So. 619, 31 L. R. A. (N. S.) 689.

40 Pullman Co. v. Norton (Tex. Civ. App.) 91 S. W. 841; Kinsley v. Lake Shore & M. S. R. Co., 125 Mass. 54, 28 Am. Rep. 200.

when the injury is due to insufficient mechanical facilities, as in the case of the falling of the berth, the passenger may, at his option, sue either the sleeping car company or the carrier.“1

WHO ARE PASSENGERS

166. All persons who ride in the vehicles of the carrier, with the latter's consent, either express or implied, are passengers, except those who are in the carrier's employment.

In General

While the generally accepted definitions of a passenger vary somewhat, they usually contain two essential elements: (1) A person presenting himself for immediate transportation; and (2) the acceptance of the person in that capacity by the carrier.42 The discussion of these two elements is left for subsequent consideration under the subject of the commencement of the relation. In the present section, the only question to be considered is this: What persons riding on the conveyances of the carrier are to be regarded as passengers? Later sections will treat of the time of the commencement and termination of the relation of passenger and carrier. As the duty owed by the carrier to its passengers (that of exercising the highest degree of practicable care) is much greater than the duty owed to any other class of persons, the importance of the question becames obvious.

In general, it may be said of persons riding on the carrier's conveyances that they alone are passengers who fulfill two conditions,

41 Pennsylvania Co. v. Roy, 102 U. S. 451, 26 L. Ed. 141; Louisville & N. R. Co. v. Ray, 101 Tenn. 1, 46 S. W. 554; Dwinelle v. New York Cent. & H. R. R. Co., 120 N. Y. 117, 24 N. E. 319, 8 L. R. A. 224, 17 Am. St. Rep. 611; (assault by porter); Robinson v. Chicago & A. R. Co., 135 Mich. 254, 97 N. W. 689; Cleveland, C., C. & I. R. Co. v. Walrath, 38 Ohio St. 461, 43 Am. Rep. 433 (falling berth). A carrier must exercise the utmost care for the safety of a passenger on a Pullman car, and where the passenger, while asleep in her berth, was assaulted and robbed, the carrier and the sleeping car company were both liable for a negligent failure to protect the passenger. Calder v. Southern Ry. Co., 89 S. C. 287, 71 S. E. 841, Ann. Cas. 1913A, 894. 42 Fetter on Passenger Carriers, § 210; 2 Hutch. Carr. § 997; Bricker v. Philadelphia & R. R. Co., 132 Pa. 1, 18 Atl. 983, 19 Am. St. Rep. 585; Woolsey v. Chicago, B. & Q. R. Co., 39 Neb. 798, 58 N. W. 444, 25 L. R. A. 79; Fitzgibbon v. Chicago & N. W. Ry. Co., 108 Iowa, 614, 79 N. W. 477; Exton v. Central R. Co., 63 N. J. Law, 356, 46 Atl. 1099, 56 L. R. A. 508; Barth v. Kansas City El. Co., 142 Mo. 535, 44 S. W. 778; Louisville & E. R. Co. v. McNally, 105 S. W. 124, 31 Ky. Law Rep. 1357; Schuyler v. Southern Pac. Co., 37 Utah, 612, 109 Pac. 1025.

43 Post, § 167.

44 Post, chapter XVII.

the one positive and the other purely negative. Positively, they must ride with the carrier's consent, either express or implied; negatively, they must not be in the employment of the carrier. The mere transportation under these conditions makes one a passenger.45

In the overwhelming majority of cases, the person riding has no connection officially with the carrier, duly presents himself with no other end in view than the mere transportation, is accepted by the carrier, and the proper fare is paid. These cases, of course, are so clear as to present no difficulty. Therefore only the somewhat exceptional or unusual cases call for any extended treatment. Those Engaged in Business, but Not Employed by the Carrier

In addition to the employés of the carrier, there are a number of persons on the carrier's conveyances engaged in business thereon. To these, or to some of them, the term of quasi passengers is sometimes applied; but the distinction is of little practical importance, as it is held that in either case the carrier owes to them the same duty that is owed to a passenger. The fact that these seek, not transportation, but an opportunity to pursue their calling, does not affect the carrier's duty; nor does it matter, in this connection, whether they pay fare themselves or whether this is paid by those in whose employ they are.

Thus the following have been held to be passengers according to the principles just stated: Postal clerks carried under contract between the carrier and the federal government; 46 express mes

45 Woolsey v. Chicago, B. & Q. R. Co., 39 Neb. 798, 58 N. W. 444, 25 L. R. A. 79; Pennsylvania R. Co. v. Price, 96 Pa. 256; Gillshannon v. Stony Brook R. Corp., 10 Cush. (Mass.) 228; Ryan v. Cumberland Val. R. Co., 23 Pa. 384; O'Donnell v. Allegheny Valley R. Co., 59 Pa. 239, 98 Am. Dec. 336; Russell v. Hudson River R. Co., 17 N. Y. 134; Vick v. New York Cent. & H. R. R. Co., 95 N. Y. 267, 47 Am. Rep. 36; Wright v. Northampton & H. R. Co., 122 N. C. 852, 29 S. E. 100; Minty v. Union Pac. R. Co., 2 Idaho (Hasb.) 471, 21 Pac. 660, 4 L. R. A. 409; TRAVELERS' INS. CO. v. AUSTIN, 116 Ga. 266, 42 S. E. 522, 59 L. R. A. 107, 94 Am. St. Rep. 125, Dobie Cas. Bailments and Carriers, 305.

46 Pennsylvania R. Co. v. Price, 96 Pa. 256; Nolton v. Western R. Corp., 15 N. Y. 444, 69 Am. Dec. 623; Seybolt v. New York, L. E. & W. R. Co., 95 N. Y. 562, 47 Am. Rep. 75; Hammond v. North Eastern R. Co., 6 S. C. 130, 24 Am. Rep. 467; Houston & T. C. Ry. Co. v. Hampton, 64 Tex. 427; Arrowsmith v. Nashville & D. R. Co. (C. C.) 57 Fed. 165; Collett v. Railway Co., 16 Q. B. (Eng.) 984; Gulf, C. & S. F. Ry. Co. v. Wilson, 79 Tex. 371, 15 S. W. 280, 11 L. R. A. 486, 23 Am. St. Rep. 345; Norfolk & W. R. Co. v. Shott, 92 Va. 34, 22 S. E. 811; Schuyler v. Southern Pac. Co., 37 Utah, 612, 109 Pac. 1025; Illinois Cent. R. Co. v. Porter, 117 Tenn. 13, 94 S. W. 666, 10 Ann. Cas. 789; Lindsey v. Pennsylvania R. Co., 26 App. D. C. 503, 6 Ann. Cas. 862.