Kidwell v. Chesapeake & O. Ry. Co.

• Citation: 77 S.E. 285,71 W.Va. 664
• Parties: KIDWELL v. CHESAPEAKE & O. RY. CO.
• Decision Date: 28 January 1913
• Court: Supreme Court of West Virginia

77 S.E. 285

71 W.Va. 664

KIDWELL v. CHESAPEAKE & O. RY. CO.

Supreme Court of Appeals of West Virginia.

January 28, 1913

Submitted January 18, 1911.

Syllabus by the Court.

The relation of passenger and carrier begins when one presents himself at a passenger station of the carrier, in readiness to be transported to his destination, under such circumstances of time, place, manner, and condition that the carrier must be deemed to have accepted him as a "passenger."

No formal act of delivery of one's person into the care of a railroad company, or of acceptance by the latter of one who presents himself for transportation, is essential to constitute the relation of passenger and carrier. The existence of such relation is ordinarily implied from circumstances.

The purchase of a ticket does not alone operate to constitute that relation; nor is such purchase essential to its existence, though it may be considered as one among other elements entering into the inception of such relation.

One upon the premises of a railroad company to purchase a ticket for passage over its lines on a train scheduled to depart eight hours later, intending in the meantime to remain in the city of purchase and not upon the premises of the company and therefore not under its care or control, is not a "passenger," within the proper meaning of the term.

Error from Circuit Court, Cabell County.

Action by Herbert Kidwell against the Chesapeake & Ohio Railway Company. Judgment for plaintiff, and defendant brings error. Reversed, and new trial granted.

Poffenbarger P., dissenting.

Simms Enslow, Fitzpatrick & Baker, of Huntington, for plaintiff in error.

Isbell & Perry, of Huntington, for defendant in error.

LYNCH J.

This is an action of trespass on the case for damages. The declaration alleges that the plaintiff had become, and was at the time of the injury, a passenger in and at the defendant's railroad station in Cincinnati, Ohio, and as such entitled to transportation therefrom to Huntington, W. Va., and to that degree of care due from carrier to passenger; and that, while sustaining such relation, he was assaulted and injured by an officer of the defendant company.

There was a verdict and judgment in favor of the plaintiff. Though urging in its brief only two grounds for reversal, others, imperfectly and in some degree inconsistently stated, are assigned by defendant in its petition for the writ of error, and otherwise appear in the record.

First. The demurrer to the declaration was overruled. The declaration sufficiently states a cause of action, which, if sustained by proof, would entitle the plaintiff to a verdict. It is clear, therefore, that the demurrer was properly overruled.

Second. The declaration avers that the plaintiff was a passenger at the time and place of the injury. The facts proven are that on June 16, 1907, the plaintiff and his mother resided in Huntington, and that on that day, desiring to visit for one week the married daughter of the mother and sister of the plaintiff, he purchased two excursion tickets entitling them to passage from Huntington to Cincinnati and return. The coupons were good only on the day of purchase and on the return trip of the excursion train. Arriving in Cincinnati, the plaintiff sold the return coupons. Between 10 and 11 o'clock in the morning of June 23d, the plaintiff went to the defendant's platform, near its passenger station in Cincinnati, for the purpose of purchasing from incoming excursionists two return coupons, issued that day by defendant at Huntington under the same limitations as the former excursion tickets, entitling him and his mother to passage on the return trip of the excursion train on that day to Huntington, leaving the station at 7 o'clock p. m., intending in the meantime to remain at the home of his sister in Cincinnati until the departure of the excursion train; and, while still on the platform of defendant, he was assaulted, arrested, and injured. The arresting officer demanded of plaintiff the tickets so procured, and, being refused, assaulted him in the manner stated. The validity of the tickets is conceded.

Under these conditions, this court is of opinion, and holds, that the plaintiff was not, at the time and place of assault, a passenger, within the legal meaning of the term, and therefore not entitled to that degree of care due from a carrier to a passenger. The trial evidently proceeded upon the theory that the purchase of the tickets was sufficient to constitute the plaintiff a passenger, and hence to require the carrier to afford him that degree of safety and security imposed by law in such cases. One may become a passenger without a ticket, if by some act on his part he places himself in the care or control of the carrier, intending in good faith to become a passenger, and is accepted by the carrier as such, although, of necessity, the existence of the relation is commonly to be implied from attending circumstances. Gardner v. New Haven Railroad Co., 51 Conn. 143, 50 Am.Rep. 12; 5 Am. & Eng. Enc. Law (2d Ed.) 488; Strong v. Railroad Co., 116 Ill.App. 246; Riley v. Vallejo Ferry Co. (D. C.) 173 F. 331. But the purchase of a ticket was not alone sufficient to make plaintiff a passenger. 1 Elliott on Railroads, § 1579; Spannagle v. Chicago & A. Railroad Co., 31 Ill.App. 460; Schurr v. Houston, 10 N.Y.S. 262; White, Per. Inj. on Railroads, § 555.

In addition to these elements of the relation, the decisions also indicate that the intending passenger must come to the station, and within the implied care or control of the carrier, a reasonable time before the departure of the train by which he is to travel. Harris v. Stevens, 31 Vt. 79, 73 Am.Dec. 337; Phillips v. Railroad Co., 124 N.C. 123, 32 S.E. 388, 45 L.R.A. 163; Abbet v. Railroad Co., 46 Or. 549, 80 P. 1012, 1 L.R.A. (N. S.) 851, 114 Am.St.Rep. 885, 7 Ann.Cas. 962; Heinlein v. Railroad Co., 147 Mass. 136, 16 N.E. 698, 9 Am.St.Rep. 676. In Harris v. Stevens, supra, it is said: "The right to enter and remain at a railroad station extends only so far as is reasonably necessary to secure to the traveler the full and perfect exercise of his right to be carried upon the cars, and what is a reasonable time will depend upon the circumstances of each particular case;" that one's right to remain at a railroad station depends on his intent to take a train expected soon to leave. Layne v. Railway Co., 68 W.Va. 214, and other cases, hold that a passenger has a reasonable time after reaching his destination to leave the carrier's premises; and that the question whether he failed to depart within a reasonable time is one of fact for the jury. But what facts legally constitute one a passenger is a question of law. Railroad Co. v. O'Keefe, 168 Ill. 115, 48 N.E. 294, 39 L.R.A. 148, 61 Am.St.Rep. 68; Railroad Co. v. Jennings, 190 Ill. 478, 60 N.E. 818, 54 L.R.A. 827.

The case most elaborately discussing the elements constituting the relation of carrier and passenger is Webster v. Railroad Co., 161 Mass. 298, 37 N.E. 165, 24 L R. A. 521. There the contention for the plaintiff was that, "inasmuch as he had previously obtained a ticket, and was on the defendant's premises in a place designated for the use of passengers outside of the station, and was about to take a train, he had become a passenger." The court did not accept this view, but held that "one becomes a passenger when he puts himself into the care of a railroad company to be transported under a contract, and is received and accepted by the company. There is hardly ever any formal act of delivery of one's person into the care of a carrier, or of acceptance by the carrier of one who presents himself for transportation, and so the existence of the relation of passenger and carrier is commonly to be implied from circumstances. These circumstances must be such as to warrant an implication that one has offered himself to be carried on a trip about to be made, and that the other has accepted his offer and has received him, to be properly cared for until the trip is begun, and then to be carried over the railroad. A railroad company holds itself out as ready to receive as passengers all persons who present themselves in a proper condition, and in a proper manner, at a proper place, to be carried. It invites everybody to come who is willing to be governed by its rules and regulations. In a case like this the question is whether the person has presented himself, in readiness to be carried, under such circumstances in reference to time, place, manner, and condition that the railroad company must be deemed to have accepted him as a passenger. Was his conduct such as to bring him within the invitation of the railroad company? In Dodge v. Boston & Bangor Steamship Co., 148 Mass. 207 [19 N.E. 373, 2 L.R.A. 83, 12 Am.St.Rep. 541], it was said: 'When one has made a contract for passage upon a vehicle of a common carrier, and has presented himself at the proper place to be transported, his right to care and protection begins."'

This statement of the principle has been frequently repeated by courts and text-writers. This case and many others show that the relation of carrier and passenger can be created only by contract, express or implied; that there must be an offer to become a passenger on the one part, and an acceptance of the offer on the other. Higley v. Gilmer, 3 Mont. 90, 35 Am.Rep. 450; Schaefer v. Railway Co., 128 Mo. 64, 30 S.W. 331; 5 Am. & Eng. Enc. Law (2d Ed.) 488, 489; 6 Cyc. 536; White, Per. Inj. on Railroads, §§ 552, 554; Van Zile on Bail. & Carr. (2d Ed.) 635 et seq.; Berry v. Railroad Co., 124 Mo. 223, 25 S.W. 229. They sustain the view, already announced, that the plaintiff was not, at the time of the assault, a passenger of the defendant company.

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