Mishler v. Chicago, S.B.&N.I. Ry. Co.

• Decision Date: 17 March 1916
• Docket Number: No. 8796.,8796.
• Court: Indiana Appellate Court
• Parties: MISHLER v. CHICAGO, S. B. & N. I. RY. CO.

111 N.E. 944

MISHLER

v.CHICAGO, S. B. & N. I. RY. CO.

No. 8796.

Appellate Court of Indiana.

March 17, 1916.

Dissenting opinion.

For majority opinion, see 111 N. E. 460.

IBACH, C. J.

In cases of this character one of the essential facts necessary to be established before there can be a recovery is that the injured party was a passenger on one of the defendant's cars when injured. The relation of carrier and passenger, in other words, must be shown to have existed, because if the injured party was not entitled to the rights of a passenger, the carrier would owe him no duty to care for his safety as a passenger.

It will be conceded that it is not necessary to constitute a person a passenger on a street car that he should have actually bought a ticket and boarded the car at a regular stopping place. Indeed he may in some instances and under some circumstances become a passenger while attempting to board or leave a car, at a place provided for passengers to enter or alight therefrom, or when it was usual or customary for the company to receive passengers or permit them to alight. In the one instance it may be said that he becomes a passenger by virtue of an express contract, and in the other by reason of an implied contract, but in either case he must have been directly or impliedly accepted by the car men as a passenger before he becomes one.

It is not contended that the injured party here was a passenger when injured by reason of any direct contract with appellee, nor do we believe there is any evidence even tending to show that he became a passenger by reason of any implied agreement on the part of appellee.

The facts found by the jury, and indeed all the evidence, show that when appellant attempted to board appellee's car it was moving at a speed of four miles an hour across a series of steam railroad tracks. At such crossing there were the necessary safety gates, and when he attempted to board the moving car it had already passed the south safety gates and had proceeded as far as the fourth steam railroad track. The crossing was a place where trains of cars and engines frequently passed over the several tracks, and the point where he attempted to board the moving car was some distance beyond a regular stopping place, and was not a place where it was either usual or customary for the appellee to receive passengers.

It is found that the car men did not know of his presence, and all the evidence and circumstances show that such car...