Gemmill v. Illinois Central Railroad

Mr. Presiding Justice Baker delivered the opinion of the court. As to the third count it is sufficient to say that there is no evidence tending to show that the deceased stepped on the step. While the evidence does not clearly show how the deceased came to be injured, we think that from it the jury might properly find that he was injured by being caught between the mail car and the abutment. In order to recover it was necessary to prove facts from which the jury might properly find that the deceased was a passenger on defendant’s car when injured. The rule as to a railway mail clerk becoming a passenger on the car, where his duty requires him to work, is the same as that applicable to a person who intends to become a passenger on a railway train. The relation of carrier and passenger is contractual, and to make such contract the assent of both parties is necessary. If a person intending to become a passenger goes to the place provided for passengers to take a train, the company is bound to accept him as a passenger and its assent to the contract may be implied. But such assent cannot be implied and he does not become a passenger until he places himself in the care of the company as a passenger. If on his way to the station he should be injured in crossing the track of the defendant outside of the station grounds by a car of the defendant, it could not be held that the relation of carrier and passenger existed at the time of snch injury, for in such case the injury would occur before lie had placed himself in the care of the defendant as a passenger, and before the defendant had expressly or impliedly accepted or received him as such. In this case, if the deceased had gone to the,car with the intention of going to work while it was standing at the place where mail clerks usually got onto it, or perhaps if he had gone to the car to get onto it at any place where he found it standing, the defendant would have been bound to receive and accept him and he would have been entitled to the rights of a passenger and the defendant charged with the duty to him of a carrier to a passenger. But the deceased attempted to get on the car while it was moving and after it had gone a considerable distance from the place where it stood from seven to ten o’clock every night and where the mail clerks usually got onto it. The law will not imply a contract by a railway company to assume the duty of a carrier to a passenger from such facts as are disclosed by the record in this case. Farley v. Cincinnati, H & D. R. Co., 47 C. C. A. 156, 108 Fed. 14; Illinois Cent. R. Co. v. O’Keefe, 168 Ill. 115; Chicago & E I. R. Co. v. Jennings, 190 Ill. 478. It follows from what has been said that in our opinion there was no evidence from which the jury might properly find that deceased was a passenger on defendant’s car, and that therefore a verdict for the defendant was properly directed. This conclusion renders it unnecessary to consider the other grounds on which counsel for defendant in error insist that the court properly directed a verdict for the defendant. The judgment is affirmed. Affirmed.