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limb, the passenger is within his rights by resisting to the utmost. It was admirably said by Comstock, C. J., in a case when an attempt was made to eject a passenger at night from a rapidly moving car: "The passenger has the same right to repel an attempt to eject him, when such an attempt will thus endanger him, that he has to resist a direct attempt to take his life. The great law of self-preservation so plainly establishes this conclusion that no further argument can be necessary."

Tender Back of Fare by Carrier before Ejection

It is usually held, though there are cases to the contrary, that the carrier, before ejecting the passenger, must tender to the passenger any fare received by the carrier in excess of that required to pay for the passenger's transportation from the point at which his journey began to the point of his ejection.10 The carrier thus is paid only for the distance the passenger is actually carried. For the carrier to eject the passenger and then retain the fare collected on the basis of transporting the passenger to his destination hardly seems fair. It has even been held that the conductor, ejecting the passenger holding a ticket claimed by the conductor to be worthless, should return such ticket, as a piece of evidence that would be valuable to the passenger in a subsequent suit against the carrier.11

SAME-ABANDONMENT OF INCOMPLETED JOURNEY BY PASSENGER

173. The passenger may terminate his relation as such to the carrier, at any time he chooses, by leaving the carrier's vehicle with the intention of permanently abandoning his rights as a passenger.

Another analogy between the innkeeper and passenger carrier is found in the fact that, while the innkeeper 12 and carrier 18 may terminate the relation as to guest or passenger only in a few well

8 Sanford v. Eighth Ave. R. Co., 23 N. Y. 343, 80 Am. Dec. 286.

9 Gregory v. Chicago & N. W. Ry. Co., 100 Iowa, 345, 69 N. W. 532; Rahilly v. St. Paul & D. R. Co., 66 Minn. 153, 68 N. W. 853.

10 Hoffbauer v. D. & N. W. R. Co., 52 Iowa, 344, 3 N. W 121, 35 Am. Rep. 278; Bland v. Southern Pac. R. Co., 55 Cal. 570, 36 Am. Rep. 50; Braun v. Northern Pac. R. Co., 79 Minn. 404, 82 N. W. 675, 984, 49 L. R. A. 319, 79 Am. St. Rep. 497; Burnham v Grand Trunk Ry. Co., 63 Me. 298, 18 Am. Rep. 220; Baltimore, P. & C. R. Co. v. McDonald, 68 Ind. 316. 11 Vankirk v. Pennsylvania R. Co., 76 Pa. 66, 18 Am. Rep. 404. 12 Ante, § 104.

18 Ante, §§ 168-172.

defined cases, the guest 14 15 or passenger may terminate the relation at any time, either for a poor reason or no reason at all.

At any time, then, and for any reason, the passenger may terminate the relation to the carrier by leaving the carrier's vehicle. with the intention of permanently renouncing his rights as a passenger. This he may do at any point, even though he is far from the destination to which his ticket, for which he has paid, entitles him to be carried.1

The relation is not terminated, however, when the passenger leaves the carrier's vehicle, intending to return thereto, for a mere temporary purpose, 18 as, for example, to procure refreshments.1o Nor does the passenger cease to be such merely by rendering assistance to the carrier or his servants in case of an accident,20 as where, on request by the conductor, he aided in moving an ill passenger from one car to another.21 Nor does the passenger terminate the relation merely by riding in a dangerous place or posi

14 Ante, § 104.

15 See cases cited in the succeeding note.

16 Frost v. Grand Trunk R. Co., 10 Allen (Mass.) 387, 87 Am. Dec. 668; Commonwealth v. Boston & M. R. Co., 129 Mass. 500, 37 Am. Rep. 382; Buckley v. Old Colony R. Co., 161 Mass. 26, 36 N. E. 583.

17 See cases cited in preceding note.

18 Parsons v. New York Cent. & H. R. R. Co., 113 N. Y. 355, 21 N. E. 145, 3 L. R. A. 683, 10 Am. St. Rep. 450; Keokuk Northern Line Packet Co. v. True, 88 Ill. 608; Watson v. East Tennessee, V. & G. R. Co., 92 Ala. 320, 8 South. 770; Dice v Willamette Transportation & Locks Co., 8 Or. 60, 34 Am. Rep. 575; Jeffersonville, M. & I. R. Co. v Riley, 39 Ind. 568; Dodge v. Boston & B. S. S. Co., 148 Mass. 207, 19 N. E. 373, 2 L. R. A. 83, 12 Am. St. Rep. 541; Galveston, H. & S. A. R. Co. v. Mathes (Tex. Civ. App.) 73 S. W. 411; Conroy v. Chicago, St. P., M. & O. R. Co., 96 Wis. 243, 70 N. W. 486, 38 L. R. A. 419. But see Lemery v. Great Northern Ry. Co., 83 Minn. 47, 85 N. W. 908; Chicago, R. I. & P. R. Co. v. Sattler, 64 Neb. 636, 90 N. W. 649, 57 L. R. A. 890, 97 Am. St. Rep. 666. The passenger, however, can no longer claim to be such on leaving the station. Johnson v. Boston & M. R. R., 125 Mass. 75; King v. Central of Georgia Ry. Co., 107 Ga. 754, 33 S. E. 839.

19 Parsons v. New York Cent. & H. R. R. Co., 113 N. Y. 355, 363, 21 N. E. 145, 3 L. R. A. 683, 10 Am. St. Rep. 450; Dodge v. Boston & B. S. S. Co., 148 Mass. 207, 19 N. E. 373, 2 L. R. A. 83, 12 Am. St. Rep. 541; Hrebrik v. Carr (D. C.) 29 Fed. 298; Peniston v. Chicago, St. L. & N. O. R. Co., 34 La. Ann. 777, 44 Am. Rep. 444; Jeffersonville, M. & I. R. Co. v. Riley, 39 Ind. 568; Pitcher v. Lake Shore & M. S. R. Co., 55 Hun, 604, 8 N. Y. Supp. 389; Alabama G. S. R. Co. v. Coggins, 88 Fed. 455, 32 C. C. A. 1; Atchison, T. & S. F. R. Co. v. Shean, 18 Colo. 368, 33 Pac. 108, 20 L. R. A. 729.

20 McIntyre Ry. Co. v. Bolton, 43 Ohio St. 224, 1 N. E. 333; Ormond v. Hayes, 60 Tex. 180; Chicago & A. Ry. Co. v. Rayburn, 153 Ill. 290, 38 N. E. 558.

21 Lake Shore & M. S. Ry. Co. v. Salzman, 52 Ohio St. 558, 40 N. E. 891, 31 L. R. A. 261.

tion."

He still, in such case, remains a passenger, though, if injured, any recovery might be barred by a plea of contributory negligence.28

22 New Jersey Steamboat Co. v. Brockett, 121 U. S. 637, 7 Sup. Ct. 1039, 30 L. Ed. 1049; New York, L. E. & W. R. Co. v. Ball, 53 N. J. Law, 283, 21 Atl. 1052; Brown v. Scarboro, 97 Ala. 316, 12 South. 289; Willmott v. Corrigan Consol, St. Ry. Co., 106 Mo. 535, 17 S. W. 490.

23 Brown v. Scarboro, 97 Ala. 316, 12 South. 289; New Jersey Steamboat Co. v. Brockett, 121 U. S. 637, 9 Sup. Ct. 1039, 30 L. Ed. 1049. For extended discussion of contributory negligence in riding in dangerous places, see 1 Fetter on Passenger Carriers, §§ 167-177.

174.

CHAPTER XVIII

LIABILITIES OF THE COMMON CARRIER OF PASSENGERS

Introductory.

175. Duty to Accept and Carry Passengers.

176. Duty to Furnish Equal Accommodations to Passengers.

177. Liability for Delay in Transporting Passengers.

178. Liability of Carrier for Injuries to Passengers-Analysis of Discussion. In General.

179.

180.

181.

182.

183.

184.

185.

186.

187.

188.

189.

Means of Transportation.

Stational Facilities.

Duties in Connection with Transportation.
Servants of the Carrier.

Protection of the Passenger.

Contributory Negligence of Passenger.

Contributory Negligence a Question of Law or of Fact.
Last Clear Chance and Imputation of Negligence.
Presumption and Burden of Proof as to Negligence.
Carriers by Water.

190. Contracts Limiting the Liability of the Passenger Carrier.
191. Liability of the Carrier to Persons other than Passengers.

INTRODUCTORY

174. The law imposes upon the common carrier of passengers various duties, with a corresponding liability on the part of the carrier for a breach of these duties to the person to whom the duty is owed and who is injured by the breach. The present chapter is devoted to the discussion of the liabilities of the common carrier of passengers under the following heads: (1) Duty to accept and carry passengers.

(2) Duty to furnish equal accommodations to passengers. (3) Liability for delay in transporting passengers.

(4) Liability for injuries to passengers.

(5) Contracts limiting the liability of the passenger carrier. (6) Liability of the carrier to persons other thar passengers. The nature of the relation between the common carrier and the passenger has already been discussed,1 as well as the commencement and termination of this relation. The duties imposed on the carrier by this relation, and the consequent liability resulting from any breach of such duties next require attention. These can be conveniently treated according to the classification given above. In this classification the liability of the carrier in the first class 1 Ante, chapter XVI. Ante, chapter XVII.

DOB.BAILM.-36

affects passengers or intending passengers; in the sixth class, the liabilities concern those who are not in any sense passengers; in the other classes, the liabilities affect only those who are passengers of the carrier. One very important liability of the carrier, that relating to the baggage of the passenger, is so unique and requires such extended notice that it is discussed in a subsequent chapter devoted entirely to that subject.

DUTY TO ACCEPT AND CARRY PASSENGERS

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175. The common carrier of passengers must accept and carry all proper persons who suitably apply, provided there is room in his conveyance and they are able and willing to pay for the transportation.

The primary duty of the common carrier of passengers is to accept for transportation all proper persons who suitably apply. By engaging in a public calling, and by holding himself out as ready to serve all without discrimination, the common carrier of passengers must make good this holding out. He is therefore required by law. to serve the public which he proposes to serve, and in this public calling to know no individuals and to make no unreasonable and arbitrary distinctions between classes of people. The privileges which he exercises as a public servant, the essential dependence of the public on the carrier for the rendering of such

8 Post, chapter XX.

4 West Chester & P. R. Co. v. Miles, 55 Pa. 209, 93 Am. Dec. 744; Sanford v. Catawissa, W. & E. R. Co., 2 Phila. (Pa.) 107; Day v. Owen, 5 Mich. 520, 72 Am. Dec. 62; Hollister v. Nowlen, 19 Wend. (N. Y.) 234, 32 Am. Dec. 455; Hannibal R. Co. v. Swift, 12 Wall. 263, 20 L. Ed. 423; Saltonstall v. Stockton, Taney, 11 Fed. Cas. No. 12,271; Indianapolis, P. & C. Ry. Co. v. Rinard, 46 Ind. 293; Lake Erie & W. R. Co. v. Acres, 108 Ind. 548, 9 N. E. 453; Mershon v. Hobensack, 22 N. J. Law, 372; Baltimore & O. R. Co. v. Carr, 71 Md. 135, 17 Atl. 1052; Story v. Norfolk & S. R. Co., 133 N. C. 59, 45 S. E. 349; Runyan v. Central R. Co. of New Jersey, 65 N. J. Law, 228, 47 Atl. 422; BENNETT v. DUTTON, 10 N. H. 481, Dobie Cas. Bailments and Carriers, 322; Winnegar's Adm'r v. Central Pass. Ry. Co., 85 Ky. 547, 4 S. W. 237. See also Birmingham Ry., Light & Power Co. v. Anderson, 3 Ala. App. 424, 57 South. 103; Louisville & N. R. Co. v. Brewer, 147 Ky. 166, 143 S. W. 1014, 39 L. R. A. (N. S.) 647, Ann. Cas. 1913D, 151; Renaud v. New York, N. H. & H. R. Co., 210 Mass. 553, 97 N. E. 98, 38 L. R. A. (N. S.) 689.

5 BENNETT v. DUTTON, 10 N. H. 481, Dobie Cas. Bailments and Carriers, 322; Indianapolis, P. & C. Ry. Co. v. Rinard, 46 Ind. 293; Atwater v. Delaware, L. & W. Ry. Co., 48 N. J. Law, 55, 2 Atl. 803, 57 Am. Rep. 543; Zackery v. Mobile & O. R. Co., 75 Miss. 751, 23 South. 435, 41 L. R. A. 385, 65 Am. St. Rep. 617; Ford v. East Louisiana R. Co., 110 La. 414, 34 South. 585; Reasor v. Paducah & Illinois Ferry Co., 152 Ky. 220, 153 S. W. 222, 43 L. R. A. (N. S.) 820.

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