The folloAving opinion on rehearing was filed March 8, 1906. Forme,r opinion modified:
Letton, J.A rehearing of this case was granted mainly upon the question of Avhether the proposition laid doAvn in the sixth paragraph of the syllabus of the former opinion, ante, p. 773, is a correct statement of the law. This praagraph is as folloAi^s: “Prom the time, a passenger, as defined herein, places himself under the charge of the carrier as he begins his journey until he is afforded the opportunity to leave the premises of the carrier at its termination, he is ‘a passenger being transported/ unless by some act not attributable to the carrier the relation ceases.” No attack has been made upon the principles laid down in the former opinion as to when the relation of carrier and passenger begins, nor is the applicability of the rule questioned requiring the highest degree of care to be exercised by the carrier for the safety of a passenger, but it is earnestly contended that the proposition above quoted Avas unnecessary to a decision of the case and is unsound as a statement of the law. In Chicago, R. I. & P. R. Co. v. Sattler, 64 Neb. 636, it is said:
“We believe and hold that it was intended to include in the Avords Svliile being transported over its road7 all 'passengers actually on the train, Avhether the same is in motion or standing on any part of the road: and it further includes those passengers leaving the train for any necessary purpose incident to their journey, such as a change of cars, or to procure refreshments at any point Avliere the same is furnished by the company, and where an express or implied invitation is extended to the passengers to leave the car for that purpose.77
In our former opinion it Avas asked Avhether one rule could'be applied to an action brought by a passenger returning from the dining room to the train, and another rule to a passenger walking Avith him from the waiting room or ticket office to the same train, and it was upon this statement in the Battler case that the proposition herein attacked Avas founded. After further argument, *792and upon more mature consideration, we are convinced that there is merit in plaintiff in error’s contention, and that, as said in the Nattier case, we must give the qualifying phrase the force intended by the legislature. The difficulty lies in defining and limiting the class of persons who are “passengers' while being transported over its road.” When does the act of transportation begin and when does it end, and when, if ever, during the journey is the passenger not within the protection of the statute? We have held that this section makes railroad companies insurers of the safety of their passengers. Chicago, R. I. & P. R. Co. v. Zernecke, 59 Neb. 689; Chicago, B. & Q. R. Co. v. Landauer, 39 Neb. 803; Fremont, E. & M. V. R. Co. v. French, 48 Neb. 638. Such an onerous burden should not be imposed to a greater extent than warranted by legislative sanction. In its brief, plaintiff in error concedes that the statute should apply to passengers who are getting-on or off the platform and steps of the cars, and who are actually riding within the cars, but whether this is a proper limitation or not we are not called upon to determine in this case. It would seem, however, that, after a person becomes a passenger as laid down in the former opinion, the carrier is held to his common law liability alone until the time when the passenger is in the act of journeying, and that from the time that act begins until its termination, and during the necessary incidents of the transportation, he is “being transported.” The discussion, in the former opinion and at this time upon this point, is rather academic than necessary' to the decision of the case, and it is only for the purpose of avoiding misconceptions in the future that we thought it necessary to reexamine this question. Whether or not a passenger is a passenger “being- transported” depends upon the circumstances of each particular case and, until the occasion ' arises, it is difficult, if not impossible, to draw an exact line between the two classes. Upon the whole, since it is unnecessary in this case to pass upon this question, we think it had better be left an open one for future consider-' *793ation, when it becomes necessary to tbe determination of an actual controversy in which discrimination and distinction between the two classes of passengers must of necessity be made. The sixth paragraph of the syllabus is therefore disapproved, and the opinion modified accordingly.
Opinion modified.