Missouri, Kansas & Texas Railway Company of Texas v. W. B. Williams, for use of Eaton Williams, 91 Tex. 255

BROWN, Associate Justice. Eaton Williams, a minor, was in the town of Bruceville on the line of railroad which belonged to plaintiff in error and desired to return to Waco. He' was not at the depot when the train going to Waco arrived but hearing it approach ran and got on it as it was leaving the depot. He got on the front end of the first car that came by him, which was the baggage car, located immediately behind the tender, because he had not time to get on elsewhere—the train being then in motion going down grade at a rapid speed.

He had the money with which to pay his fare to Waco, and intended to do so, but had no ticket. When the train had gone about 200 yards the fireman, using a hose that was on the engine and used by the engineer and fireman to dampen the coal to keep down the dust, began throwing hot water on said Williams, and continued to do so until he jumped off the train—by which he broke his leg. The plaintiff below recovered a j udgment for §2000, which was affirmed by the Court of Civil Appeals.

This suit was brought by the next friend of the injured party to recover damages of the Railroad Company in favor of the boy, Eaton Williams. Upon the trial the District Judge charged the jury as follows: ‘ ‘And a passenger as herein used is meant that any person who in good faith boards a train carrying passengers, prepared and intending to pay his fare to the conductor, is a passenger, and it makes no difference what part of the train he boards, provided, of course, he occupies a safe place.” Error is assigned upon this charge, which presents the only question that we deem it necessary to discuss.

The relation of passenger and carrier depends upon the existence of a contract, either express or implied. It is not claimed in this case that there was any express contract between the Railroad Company and Eaton Williams, but it is claimed that an implied contract arose, under the law, when Eaton Williams boarded the defendant’s train. In this State, one who desires to take passage upon a railroad train it ly provide himself with a ticket, which constitutes an express contract for carriage, or he may pay his fare upon the train at the rate of four cents per mile.

If one who has no ticket enters the coach of a railroad company which is provided for the carriage of passengers, with the bona fide intention to take passage on the train and with the intention and ability to pay his fare when called upon, and being called upon does pay his fare, such person becomes a passenger and entitled to all the privileges and pro-1 tection of such. This constitutes an implied contract on the part of the carrier to safely carry the passenger who has thus entered its car.

But in order to raise such an implied contract the party desiring to be carried by the railroad company must take passage on that part of the train provided by it for carrying passengers. Merrill v. Railway, 139 Mass., 238; 52 Am. Rep., 705; Bricker v. Caldwell, 40 Am. & Eng. R. R. Cases, 688; Hutch. on Carriers, p. 447-8, sec. 554; Snyder v. Railway, 44 Am. & Eng. R. R. Cases, 278.

Notwithstanding the statute permits the payment of fares upon the train we think it a reasonable regulation for the company to make that it should establish places at which to receive its passengers and designate coaches for them to ride in. It is proper that the carrier should be notified of the presence of all persons claiming the protection of passengers, otherwise it would be unable to distinguish between such persons and those who might be trespassers where they enter portions of the train not used for the carriage of passengers.

By this rule the rights of a carrier and a passenger would be alike guarded, while on the other hand if the person seeking passage on the train were permitted to board any part of the train as expressed in the instruction the carrier would be placed under the highest obligation to one with whom it did not know it sustained the relation of carrier to passenger. The District Court erred in the charge complained of, for which the judgment must be reversed and the cause remanded.

Plaintiff in error claims that the court also erred in submitting to the jury the issue as to the liability of the Railroad Company if Eaton Williams was in fact a trespasser and not a passenger, because as it is claimed there was no pleading to justify the submission of such an issue. There was no exception to the petition upon this ground and we think that in the absence of exception the allegations contained in the petition showed facts sufficient to present the issue properly and to admit the testimony to sustain it.

For the error committed by the trial court in giving the charge complained of the judgments of the District Court and of the Court of Civil Appeals will be reversed and this cause remanded. Reversed and remanded.