"one who travels in some public conveyance by virtue of a contract, express or implied with the carrier, as the payment of fare or that which is accepted as equivalent therefor."43 This definition, however, like all others, is hardly comprehensive enough, for, as a general rule, every person, not an employe, being carried with the express or implied consent of the carrier upon a public conveyance usually employed in the carriage of passengers is presumed to be lawfully upon it as a passenger.44

There are two main elements in the legal definition of a passenger: first, an undertaking on the part of the person to travel in the conveyance provided by the carrier; and second, an acceptance by the carrier of the person as a passenger.45 Whether either or both of these elements exist is ordinarily a question for the jury.

43. Pennsylvania R. Co. v. Price, 96 Pa. St. 256; Bricker v. Railroad Co., 132 Pa. St. 1, 18 Atl. Rep. 983; De La Vergne, etc., Co. v. McLeroth, 60 Ill. App. 529; Fitz gibbon v. Railway Co., 108 Iowa, 614, 79 N. W. Rep. 477; s. c. 119 Iowa, 261, 93 N. W. Rep. 276; Rawlings v. Railroad Co., 97 Mo. App. 511, 71 S. W. Rep. 534; Simmons v. Railroad Co., 41 Ore. 151, 69 Pac. Rep. 440, 1022.

"A passenger is one who enters the vehicle of a carrier with the intention of paying in money the usual fare, or who is supplied with a ticket or pass entitling him to ride to a given point." Holt ". Railroad Co., 87 Mo. App. 203.

44. Penn. R. R. v. Brooks, 27 Pa. St. 339; Moore v. Railway Co., 67 Ark. 389, 55 S. W. Rep. 161, citing Hutch. on Carr.; Fitzgibbon r. Railway Co., 108 Iowa, 614, 79 N. W. Rep. 477; Chattanooga Rapid Transit Co. r. Venable, 105 Tenn. 460, 58 S. W. Rep. 861, 51 L. R. A. 886; Anderson v. Railway Co., Mo. 93 S. W. Rep. 391.

But the presumption only extends to public vehicles, and there is no good reason for extending it so as to include a person riding upon a private vehicle, such as a brewer's wagon, Lydon v. Robert Smith Ale Brewing Co., 132 Fed. 593, 67 C. C. A. 421.

Persons who borrow an engine and car for their own use from the officials of a railroad and are hurt by the negligent management of it are not passengers of the company. Davis v. Railroad Co.. 45 Fed. Rep. 543.

45. Berry v. Railway Co., 124 Mo. 223, 25 S. W. Rep. 229.

The acceptance by the carrier need not be direct or express, but may be and usually is implied from the surrounding circumstances. Thus, in the case of railroad companies, if a train upon which a person takes passage is a regular passenger train or a train carrying passengers in general, and he boards such train without notice but that it is for passengers generally when in fact it is reserved for particular persons, the presumption will arise that he is a passenger. It is true that railroad companies have the right to run trains which do not carry passengers, or to run trains for particular persons, or for a particular class of persons and if one boards such a train, with notice of its character, he is not presumptively a passenger and there is no implied acceptance of him as a passenger in such a case. But if the train be fitted for the carriage of passengers, and is placed in such a position that persons may be induced to enter it as passengers, then it must be shown that such persons had notice or knowledge that it was not intended for their use.46

Sec. 998. Same subject-Authority of carrier's employes to create relation of passenger.-Whatever, therefore, the rule may be when one is riding for his own convenience on a freight train, an engine, a hand-car, or any other carriage of the carrier that is evidently not designed for the transportation of passengers, the presumption is that one riding on a passenger coach, an omnibus, or any other carriage of the carrier that is palpably designed for the transportation of passengers, is lawfully there, by invitation of the employes of the carrier in charge of the vehicle, and that these employes have authority to bind the carrier by such invitation or permission. The presumption is not conclusive. Proper evidence or countervailing circumstances may rebut it. But, in the absence of these, it should have proper consideration. And this presumption should not be overlooked even where the person

46. Fitzgibbon v. Railway Co., s. c. 119 Iowa, 261, 93 N. W. Rep. 108 Iowa, 614, 79 N. W. Rep. 477; 276.

is an employe of a railroad company riding with other employes in a passenger coach at the invitation of a yardmaster.47 Sec. 999. Same subject-Persons not passengers who voluntarily ride in places not intended for passengers.-Persons intending to become passengers, however, are presumed to know that they must enter the coaches set apart for passengers, and the carrier is not required to notify every individual who may board its train of that fact. It is the duty of the latter, upon entering the train, to inquire where the coach is in which he may be carried to a certain point, and it then becomes the duty of the carrier's servants to inform him. If he acts upon the information, the company thereby accepts him as a passenger, and he is entitled thereafter to all the privileges and immunities as such. But if, upon the other hand, he fails to make such inquiry, and, in violation of the carrier's rules, enters a vehicle not set apart for passengers, he becomes a trespasser. This would be true where the entry is upon a baggage, mail or express car, or upon any other portion of the train not assigned to passengers. 48

Sec. 1000. Same subject-Riding on freight trains, engines, hand-cars, etc.-So if a person, by his own solicitation or by his own consent, is carried upon a vehicle or conveyance

47. Bryant v. Railway Co., 53 Fed. 997, 4 C. C. A. 146, 12 U. S. App. 115.

Where one goes in good faith upon a special excursion train, believing that the conductor knew he was not a member of the excursion and that the conductor had the right to accept him as a passenger, and by the conductor's conduct he is accepted as a passenger, the relation of passenger arises even though the train was intended for excursionists only. Fitzgibbon v. Railway Co., 119 Iowa, 261, 93 N. W. Rep. 276; s. c. 108 Iowa, 614, 79 N. W. Rep. 477.

An engineer of a passenger train ordinarily has no right, by his invitation to persons to board the train, to create passengership relations. Railway Co. v. Allender, '59 Ill. App. 620; s. c. 47 Ill. App. 484.

48. Railroad Co. v. Field, 7 Ind. App. 172, 34 N. E. Rep. 406, 52 Am. St. Rep. 444; McGraw r. Railway Co., 135 N. Car. 264, 47 S. E. Rep. 758; Sutherland v. Railway Co. (Tex. Civ. App.), 40 S. W. Rep. 193; Railway Co. v. Williams, 91 Tex. 255, 42 S. W. Rep. 855, reversing (Tex. Civ. App.) 40 S. W. Rep. 350.

which is not used for the purpose of passenger carriage, and this being known to him, there can be no presumption that he is a passenger, although the owner may be a public carrier of passengers by other and different means of conveyance.1 Hence, it has been said that one riding upon the freight train of a railroad company, the very appearance of which would indicate even to the most inexperienced, that it was not used by the company for the carriage of passengers, will not be presumed to be upon it to be carried as a passenger.2 Nor would one who rode upon the locomotive of a train, though by the invitation of the conductor,3 or upon the engine cab with the consent of the brakeman or engineer, or upon a freight train by the invitation of the fireman, or upon a hand-car at the invitation of the section foreman, or upon a stone, work, or construction train,9 or upon the baggage wagon of an omnibus or transfer company which carries its passengers in its omnibuses and their baggage in its wagons, be regarded, prima facie, as a passenger of the company.10

Sec. 1001. (§ 555.) Same subject-Trespassers, tramps, defrauders, etc.-And if the person should be upon the conveyance by fraud, or against the express orders of the carrier,

1. This rule is held to apply even though such a person has money and has a bona fide intention to pay his fare. Railway Co. Williams, 91 Tex. 255, 42 S. W. 855, reversing (Tex. Civ. App.) 40 S. W. Rep. 350.

2. Ante, § 964.

3. Files v. Railroad Co., 149 Mass. 204; Nightingale v. Union Colliery Co., 9 B. C. R. 453, 2 Can. Ry. Cases, 47.

4. Stringer v. Railway Co., 96 Mo. 299; Radley v. Railway Co., 44 Ore. 332, 75 Pac. Rep. 212; Railrcad Co. v. Bogle, 101 Tenn. 40, 46 S. W. Rep. 760, citing Hutch. on Carr.; Streets v. Railway Co., 78 N. Y. Supp. 729, 76 App. Div.

480; affirmed, 178 N. Y. 553, 70 N. E. Rep. 1109; McGucken v. Railroad Co., 77 Hunn, 28 N. Y. Supp. 298.

5. Railroad Co. v. Thornton, 22 Ky. L. R. 778, 58 S. W. Rep. 796.

6. Rathbone v. Railroad Co., 40 Ore. 225, 66 Pac. Rep. 909; Willis v. Railroad Co., 120 N. Car. 508, 26 S. E. Rep. 784.

7. Menaugh v. Railway Co., 157 Ind. 20, 60 N. E. Rep. 694.

8. Railway Co. r. Hanna (Tex. Civ. App.), 58 S. W. Rep. 548.

9. Burns v. Railway Co., 63 S. Car. 46, 40 S. E. Rep. 1018.

10. Eaton v. The Railroad, 57 N. Y. 382.

who had just cause for refusing to carry him, he would not be entitled to the rights of a passenger.11 Thus the rule is well settled that where one gets on a passenger train with the deliberate purpose not to pay his fare, and adheres to that purpose, or if, being on the train, and having money with which he could pay his fare, he falsely and fraudulently represents to the conductor that he is without means to pay his fare, and by means of such false representations induces the conductor to permit him to remain on the train without paying his fare, the relation of carrier and passenger and the obligations resulting from that relation are not thereby established between him and the company, and the company owes him no other duty than not to wilfully or recklessly injure him.12 To be entitled to the rights of a passenger, the plaintiff who sues for an injury occasioned by the negligence of the company must have been

11. Austin v. The Railroad, L. ing tickets by consecutive numR. 2 Q. B. 442; Lygo v. Newbold, bers, of stamping upon them the 9 Exch. 302; Satterlee v. Groat, date of sale and of the return and 1 Wend. 272; O'Brien v. The Rail- preservation of the tickets used road, 15 Gray, 20; Johnson v. and cancelled by conductors, and Railway Co., 94 Fed. 473. that the tickets returned as sold and dated on the day in question were not taken up by the conductor with whom the plaintiff claimed to have ridden, but by others. Pfaffenback t. Railway Co., 142 Ind. 246, 41 N. E. Rep. 530.

In Odell v. Railroad Co., 45 N: Y. Supp. 464, 18 App. Div. 12; affirmed, 162 N. Y. 625, 57 N. E. Rep. 1119, the court held it to be a question for the jury to determine whether the plaintiff, in presenting a ticket which had been issued to a third person and which provided that any "visitor" to his family might ride upon it, acted in good faith, and in the honest belief that she was entitled to ride upon it as a "visitor."

On an issue whether a person was a trespasser or a passenger, if the plaintiff testifies that he was a passenger and that his ticket was taken up by a certain conductor, it is competent for the railroad company's auditor to testify to the system of issuing and sell

An attempt at evasion of payment of fare will not deprive a person of the right to later go into the passenger car and pay his fare. Fordyce . Beecher, 2 Tex. Civ. App. 29, 21 S. W. Rep. 179.

12. Condran v. Railroad Co., 67 Fed. 522, 14 C. C. A. 506, 32 U. S. App. 182, 28 L. R. A. 749; Toledo, etc., R. R. v. Brooks, 81 Ill. 245, 292; see also, Railroad Co t. Smith, 110 Tenn. 197, 75 S. W. Rep. 711, 100 Am. St. Rep. 799.