Radley v. Columbia Southern Ry. Co.

• Decision Date: 08 February 1904
• Citation: 75 P. 212,44 Or. 332
• Parties: RADLEY v. COLUMBIA SOUTHERN RY. CO.
• Court: Oregon Supreme Court

75 P. 212

44 Or. 332

RADLEY v. COLUMBIA SOUTHERN RY. CO.

Supreme Court of Oregon

February 8, 1904

Appeal from Circuit Court, Sherman County; W.L. Bradshaw, Judge.

Action by D.M. Radley against the Columbia Southern Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

This is an action to recover damages for an injury the plaintiff received in jumping from one of the defendant's locomotives upon which he was riding. The defendant owns and operates a railroad from Biggs Station, on the line of the Oregon Railroad & Navigation Company, south to Shaniko. For some distance out of Biggs there is an up grade on defendant's road, at the foot of which, in pursuance of the demand of the Oregon Railroad & Navigation Company, it had put in a derailer for the purpose of derailing a runaway car or train, and preventing a collision with either Oregon Railroad & Navigation or its own trains on the line or in the yard. The plaintiff resides at Biggs. On the day before the accident he went on some business to Wasco, the first station on defendant's road. When ready to return home in the evening, he went to the station to learn whether a delayed freight train, which carried passengers, was going on through, and there met the conductor of the train, who told him that it would not go until morning, and that he might go down on it then, provided he was at the station in time. The next morning the plaintiff purchased some provisions, and had them delivered at the station. He soon after went down himself, and met the station agent, who told him that his things had been put aboard the train, and that, if he desired to ride thereon, he would have to go to where it was standing, some three or four hundred feet south of the depot as it would not or could not stop after it had started. The train consisted of an engine and tender, 15 loaded cars, and the caboose. The plaintiff, without purchasing a ticket or paying his fare, started up the track to get on the caboose but before he reached it the signal to start had been given and after he had gone two or three car lengths past the engine, the engineer called out to him, saying: "Come get on here. I haven't time to wait. We want to start right out"--when the plaintiff got aboard the engine. At that time the conductor was on the top of the train, about two-thirds of the way back to the rear, but he did not say anything, and there is no direct evidence that he saw the plaintiff, or knew that he got aboard the engine. The plaintiff rode on the engine to Biggs, but when the train reached the derailing switch it was not stopped, as was the custom, so that some one could go forward and close the switch, but, as we must assume from the verdict of the jury, through the negligence and carelessness of the defendant and its servants, the engine and the first three cars ran off the track and onto the ties, the caboose and the other cars remaining on the track. When it was apparent that the engine was going into the open switch, the plaintiff, in response to a suggestion from the fireman, leaped to the ground, breaking his leg, for which injury he seeks to recover in this case. His action is based upon allegations that he was a passenger, and that the accident occurred on account of the carelessness of the defendant. The defense is that he was not a passenger, but a trespasser, and that the accident was due to his contributory negligence in riding at an exposed and unusual place on the train. He had a verdict and judgment in the court below, and the defendant appeals.

Wallace McCamant, for appellant.

W.H. Wilson, for respondent.

BEAN J. (after stating the facts).

There were many points discussed by counsel at the argument and in the briefs, but the controversy centers around the question as to whether the plaintiff was a passenger at the time of the accident, and entitled to the rights and protection of such, and, if so, whether he is guilty of such contributory negligence in riding on the engine as will bar a recovery. There is no contention that he was a passenger because of anything said or done by the engineer. It is admitted by the plaintiff that the engineer had no authority to bind the defendant by inviting plaintiff to ride on his engine, or to create the relation of passenger and carrier between him and defendant. It is argued, however, that plaintiff was a passenger, because (1) he was riding on the engine with the knowledge of, and without objection from, the conductor; and (2) he went to the station on the morning of the accident, intending to take passage on the train, and was directed by the station agent of the defendant where to go to board the train. There is no pretense that the plaintiff was on the engine by the express invitation, direction, or permission of the conductor. It is only sought to infer from the testimony and surrounding circumstances that the conductor probably knew that he was aboard the engine, although such an inference is hardly warranted by the testimony. But even if the conductor had knowledge of the fact, it was not sufficient to make him a passenger. The train was about to start at the time the plaintiff boarded the engine; the signal had already been given; and it was not the duty of the conductor to delay the departure of the train, or to stop it after it had started, before reaching the next station, to put the plaintiff off, in order to prevent him from becoming a passenger. Downey v. Railway Company, 28 W.Va. 732; Atchison, etc., R. Co. v. Headland, 18 Colo. 477, 33 P. 185, 20 L.R.A. 822. Again, the company had provided a car attached to the train for the carriage of passengers, and the plaintiff had knowledge of that fact. The mere silent acquiescence of the conductor in his riding on an engine would therefore not make him a passenger. 4 Elliott, Railroads, § 1580; Virginia Midland R. Co. v. Roach, 83 Va. 375, 5 S.E. 175. A conductor, of course, has charge of the train, and has authority to assign passengers to cars and seats. Ordinarily, if he directs a passenger to take a certain place on the train, the passenger may obey him without losing his status as a passenger, or being guilty of contributory negligence, as a matter of law, unless, perhaps, the place is so obviously unsafe and dangerous that no reasonably prudent person would consent to occupy it, even if directed to do so. But a conductor's mere knowledge that a person is riding at an unsuitable or exposed place on the train, or one he knows is not designed for carrying passengers, does not make the person a passenger, or charge the carrier with that high degree of care toward him which it owes to one whom it has accepted and agreed to transport as a passenger. Where one has, by entering a car provided by a railway company for that purpose, become in fact a passenger, he perhaps does not lose such status by assuming a dangerous position on the train, assigned him by the direction or consent of the employés in charge thereof, although under such circumstances he may even be guilty in some instances of such contributory negligence as would preclude a recovery. 3 Thompson, Negligence, § 2671; Brown v. Scarboro (Ala.) 12 So. 298; Willmot v. Corrigan Consolidated St.Ry. Co. (Mo.Sup.) 17 S.W. 490; Lake Shore & Michigan Southern Ry. Co. v. Brown, 123 Ill. 162, 14 N.E. 197, 5 Am.St.Rep. 510; Indianapolis, etc., Ry. Co. v. Horst, 93 U.S. 291, 23 L.Ed. 898. Before this principle can apply, however, he must first become a passenger, and he does not assume that relationship by voluntarily boarding an engine, which is obviously not designed for the carriage of passengers. McGucken v. Western N.Y. & P.R. Co., 77 Hun, 69, 28 N.Y.Supp. 298; Virginia Midland R. Co. v. Roach, supra; Robertson v. New York & Erie R. Co., 22 Barb. 91. The plaintiff, therefore, did not become a passenger by riding on the engine with the silent acquiescence of, and without objection from, the conductor, even if the evidence is sufficient to sustain his position on this point.

Nor did he become a passenger on the train because he went to the station for that purpose. Where one goes to a railway station at a reasonable time before the departure of a train for the purpose of traveling thereon, he may be regarded as a passenger in so far as it may relate to an injury received through the negligence or carelessness of the company while in or about the station or attempting to board the train. Allender v. Chicago, Rock Island & Pacific R. Co., 37 Iowa, 264; Grimes v. Pennsylvania Company (C.C.) 36 F. 72; Warren v. Fitchburg R. Co., 8 Allen, 227 85 Am.Dec. 700; Exton v. Central R. Co., 62 N.J.Law, 7, 42 A. 486. The plaintiff, however, was not injured at the station, but while riding on the train eight or ten miles distant therefrom; and the duty of the company to him must be determined by the relation he bore to it on the train, and not while he was at the station. One does not become a passenger on a railway train until he has come under the charge of the carrier by boarding, or attempting to board, at its invitation, a car thereof used or held out by it for the transportation of passengers. The relation of passenger and carrier is one of contract, and requires the assent of both parties. To become a passenger, one must put himself in charge of the carrier, with the bona fide intention of being carried, and the carrier must receive and accept him as such. 4 Elliott, Railroads, § 1579; 5 Am. & Eng.Ency.Law (2d Ed.) 488; Webster v. Fitchburg R. Co., 161 Mass. 298, 37 N.E. 165, 24 L.R.A. 521; Illinois Central R. Co. v. O'Keefe, 168 Ill. 115, 48 N.E. 294, 39 L.R.A. 148, 61 Am.St.Rep. 68. Of course, there is hardly ever any formal act by the passenger in putting himself in the care of the carrier, or by the carrier in...