Sec. 1009. ($ 559.) Same subject-Injury while waiting but before purchase of ticket.—So where the plaintiff was waiting at a station to take passage upon an expected train, and whilst so waiting, and before she had procured a ticket or paid her fare for the intended journey, she was injured in an endeavor to escape from what she reasonably supposed to be a dangerous position in which she was placed by the negligence of the agents of the company, it was held that the company had failed to exercise towards her the care and diligence which are required of the carrier of passengers, and that she was therefore entitled to a recovery against it.1

Sec. 1010. (§ 560.) Same subject-Is a passenger while coming to station on carrier's vehicle.-Where the plaintiff was injured by the overturning of a stage sleigh, while on his way to the train, and before he had paid his fare or obtained his ticket, the railroad company was held liable to him as a passenger, it being shown that the sleigh belonged to a person with whom the company had a contract, for a daily compensation, to carry passengers from the village at which the plaintiff had got upon the sleigh to its station, and that the owner

fendant's train that he intended to go to a certain place on the defendant's line is admissible as tending to show his right to be upon the defendant's property Railroad Co. v. State, 81 Md. 371, 32 Atl. Rep. 201.

Where it appeared that plaintiff's intestate went to Boston daily, and that, less than a quar ter of an hour before the accident, he had left his house in a hurry, saying that he was going to take the defendant's train as there were no electric cars run ning, and that, just after he had reached the platform of the car, he was killed in a collision with another train, it was held to be a question for the jury whether he

was a passenger, although there was no proof that he had a ticket or the money to pay for one. Inness v. Railroad Co., 168 Mass. 433, 47 N. E. Rep. 193.

As to the admissibility of declarations of intention to become a passenger, see Railway Co. 1. Herrick, 49 Ohio, St. 25, 29 N. E. Rep. 1052 and Railroad Co. v. Chancellor, 165 Ill. 438, 46 N. E. Rep. 269, reversing 60 Ill. App. 525.

1. Caswell v. The Railroad, 98 Mass. 194. See, also, Gordon r. The Railroad, 40 Barb. 546; Cen tral R. R. v. Perry, 58 Ga. 461; Grimes v. Penn. Co., 36 Fed. Rep. 72; Railway Co. v. Wagiey, 91 Fed. 860, 34 C. C. A. 114.

and his sleigh were in the company's employment at the time of the accident, the sleigh under such circumstances being regarded as a part of the transporting arrangements of the company in connection with their railroad.2

Sec. 1011. (§ 561.) Same subject-Injury to passenger on platform by objects thrown from passing train-Coal-Stick of wood-Mail bags.-A person does not cease to be a passenger by being on the platform waiting for a train, and if he is injured by articles negligently thrown from the train by the carrier's own servants, or by postal clerks or express men in pursuance of a notorious practice which the company could take precautions against or prevent, the company will be liable in damages.3 Thus where a person was standing upon the station platform waiting for his train which was late and, while so waiting, a piece of coal from the tender of a passenger train going by the station struck him and caused him serious injury, the court held that he sustained the relation of passenger to the carrier since he was there for the purpose of taking the train and, the train being late, he had a right to wait for it. So where one traveling upon a railway train left the car upon which he was being carried, and, while standing upon a platform of the road, but not the one intended for the accommodation of its passengers, but very near the train, was injured by a stick of burning wood carelessly thrown from one of the cars by a servant of the company employed upon the train, it was held that, notwithstanding he was not upon the train when the occurrence happened, and was standing at a place not intended for passengers, he was still entitled to the rights of one, and that the company was liable on the

2. Buffett v. The Railroad, 40 senger cannot recover for injuries N. Y. 168, 36 Barb. 420.

3, Railway Co. v. Rhodes, 86 Fed. 422, 30 C. C. A. 157.

due to a bundle being thrown from the express car. Winship Railroad Co., 170 Mass. 464, 49 N. E. Rep. 647.

4. Railroad Co. v. Reynolds, 24 Ky. L. Rep. 1402, 71 S. W. Rep.

In view of St. 1894, c. 469, § 3, making railroads not liable for negligence of expressmen on the train not in their employ, a pas- 516.

grounds of negligence. So the company is liable to a passenger standing on the platform who is struck by a mail-bag thrown from the car by the United States mail agent, that being the place and method of delivery fixed upon, and the company having taken no precautions to warn passengers of the danger. But in the latter case there must be proof that such act was the habitual or frequent act of the mail agent, and that the company had notice or by the exercise of reasonable diligence might have known of such habit

Sec. 1012. (§ 561a.) Same subject-Continues to be passenger though temporarily absent from vehicle. So whenever, after a person has been received as a passenger and his carriage has been undertaken, the performance of the contract in the usual and proper way involves his leaving the vehicle, whether on business or for pleasure, and returning to it, the passenger is entitled to protection as such as well while so leaving and returning as at any other time; but during the interval of his

5. Jeffersonville, etc. R. R. v. Riley, 39 Ind. 568.

6. Carpenter v. Railroad Co., 97 N. Y. 494; Snow v. Railroad Co., 136 Mass. 552; Railway Co. v. Rhodes, 86 Fed. 422, 30 C. C. A. 157; Galloway v. Railway Co., 56 Minn. 346, 57 N. W. Rep. 1058, 23 L. R. A. 442; Hughes v. Railroad Co., 127 Mo. 447, 30 S. W. Rep. 127; Sargent . Railway Co., 114 Mo. 348, 21 S. W. Rep. 823, 19 L. R. A. 460; Ayres V. Rail road Co., 158 N. Y. 254, 53 N. E. Rep. 22, affirming 40 N. Y. Supp. 11, 4 App. Div. 511.

7. Railroad Co. v. Waggoner, 90 Ill. App. 556; Shaw v. Railway Co., 123 Mich. 629, 82 N. W. Rep. 618, 81 Am. St. Rep. 230, 49 L. R. A. 308; Ayres v. Railroad Co., 77 Hun, 414, 28 N. Y. Supp. 789.

8. Parsons v. Railroad Co., 113 N. Y. 355; Railway Co. v. Mathes,

7 Tex. Ct. R. 172, 73 S. W. Rep.

411.

"Where a passenger, without objection by the company or its agents, alights at an intermediate station which is a station for the discharge and reception of pas sengers, for any reasonable and usual purpose, like that of refreshment, of the sending or receiving of telegrams, or of exercise by walking up and down the platform, or the like, he does not cease to be a passenger, and is justified in the belief that the company is exercising due care for his safety." Railway Co. v. Coggins, 88 Fed. 455, 32 C. C. A. 1.

A person is entitled to the rights of a passenger who finds it necessary to change trains and is waiting on the platform, after leaving the first train, for the train which is to take him to his

absence, after his departure from the station and before his return to it, he is not to be regarded as a passenger. Illustrations of this are found where the passenger leaves the car temporarily at a station to obtain refreshments10 or to attend to business.11 But a person is not to be considered a passenger where, having left the train with the intention to return and resume his journey at another time and on another train, he passes, during the interval, over the company's grounds as a mere short cut to another place at which he has business to transact not connected with his carriage.12 And a distinction

has been made between passengers on a through and local train, for, on a through train, as there are no passengers to discharge and none to receive at intermediate points, a stopping of the train for some purpose connected with its operation creates no necessity for the exercise of vigilance in the matter of attention to approaches to the train, and the company should not be held guilty of negligence in failing so to do.13

Sec. 1013. (§ 561b.) Same subject-Does not cease to be passenger by assisting carrier in emergency. So a passenger does not cease to be such because he leaves the vehicle and assists the carrier at his request in an emergency. It was so held in the case of a passenger upon a street car. The car having been run too far past a siding where it was to pass another car, the driver requested plaintiff to get off and help him push it back. While so assisting the driver the plaintiff was struck and injured by the other car carelessly driven. It was urged by the defendant that plaintiff, by undertaking to assist the driver, became a fellow-servant of the company and could not recover, but the court held that he continued to be a passenger and was entitled to recover.14 And in another case, a passenger at the request of the conductor helped to carry a sick passenger back to the caboose at the rear of the train where he could be more properly cared for, and, in passing between the cars, the first passenger fell between them and was injured. He was held to be still a passenger and not a fellow-servant.15

The question of the negligence of the carrier or of the contributory negligence of the passenger in such case is usually one of fact for the jury.16

13. Lemery v. Railway Co., 83 Minn. 47, 85 N. W. Rep. 908.

14. McIntyre St. R'y Co. v. Bolton, 43 Ohio St. 224.

15. Railway Co. v. Salzman, 52 Ohio St. 558, 40 N. E. Rep. 891,

31 L. R. A. 261, 49 Am. St. Rep. 745, affirming 9 O. C. C. 230.

16. Railroad Co. v. Rayburn, 153 Ill. 290, 38 N. E. Rep. 558, reversing 52 Ill. App. 277.