dissenting. This action was brought by the plaintiff against the defendant company to recover damages for injuries sustained by him through the alleged negligence of the servants and agents of said company. The negligence alleged in the complaint is that on the 13th of November, 1896, the plaintiff purchased a ticket whereby the defendant undertook to carry the plaintiff as a passenger from Columbia to Alston, and that he boarded defendant’s train as it was leaving Columbia for Alston; that said train moved off towards Alston just after the plaintiff stepped upon the platform of the car, and while standing on said platform, and before he had gone inside of the car, the plaintiff was approached by the agent and servant of the defendant in a very hostile-'manner, and com*160manded by the said servant to alight from said car, which was then in motion; that in trying to alight from said car, pursuant to the command of the defendant’s agent and servant as aforesaid, the plaintiff was thrown violently to the ground, whereby he sustained the injuries complained of.
To sustain these allegations the plaintiff testified as follows: “Well, going down to the cars, the people down there were just as thick as your fingers; you couldn’t hardly get through them. I had my ticket — of course, aiming to get home that morning — and coming down to the train; I always rides in the second class coach — it is divided, one part in front, of course, was the baggage car,-and the other behind was the second class coach; and the car was just about starting off as I got there — just about in motion to start off— and I stepped on the first place, on the front end of the baggage car, just stepped up on that, and then the car was going on off at that time. Well, going on, of course, the car was gaining speed as it went on, and when the baggage-master saw me, it had went on up a little piece, and when I got to the door going into the baggage car, he saw me, and he come running to me, said, ‘Get off, get off.’ He came towards me with force, and I turned round to jump off. The car had gained speed right smartly, and I jumped off,” and sustained the injuries complained of. In his cross-examination this witness admitted that he did not go into the depot or under the Union shed- to board the train he desired to take, but that he got on the car in Gervais street beyond the shed, supposing it to be the second class car — not noticing that it was the baggage car which he got on. The other witnesses examined on behalf of the plaintiff add nothing material, to that of the plaintiff himself, as to the circumstances under which the accident occurred.
At the close of plaintiff’s testimony, the defendant moved for a nonsuit, substantially upon three grounds: 1st, that there was no evidence tending to show that the relationship of passenger and carrier existed between plaintiff and defendant at the.Time tile- disaster occurred; 2d, that there *161was no testimony tending to show any negligence on the part of the defendant by which the disaster was caused; 3d, that, assuming all the facts testified to by the plaintiff to be true, there is nothing in such testimony tending to show any fault upon the part of the defendant company or any one of its authorized agents. The motion for a non-suit was refused by his Honor, Judge Buchanan, without assigning any reason, except that “there is something here for the jury.” What question of fact was presented by the testimony for the plaintiff for the jury to pass upon, it is somewhat difficult to conceive. The fundamental question in the case was, whether the relationship of passenger and carrier had arisen; and that, under the undisputed facts of the case, presented a question of law for the Court and not for the jury to determine. There was no doubt of the fact, that the plaintiff had in his pocket a ticket from Columbia to Alston, and there was as little doubt that plaintiff boarded defendant’s train — not at the proper place, but while it was crossing Gervais street, outside of the shed where passengers were invited and expected to take the trains; and there was also no doubt of the fact that plaintiff attempted to enter the train by the steps leading into the baggage car, instead of by the steps leading to the second class car; and there was also no doubt of the fact that while on the platform of the baggage car the plaintiff was directed by some one, whom I will assume to have been the baggage-master, to get off, and that plaintiff did jump off, and in doing so was injured. There was, therefore, no question of fact for the jury to determine. It is obvious, therefore, that the Circuit Judge erred in not ruling whether, under' the undisputed facts, the relationship of passenger and carrier between plaintiff and defendant had arisen, as called upon to do by the first ground of the motion for a nonsuit. But I go further, and say that there was error in not ruling, under the undisputed facts, that the relationship of passenger and carrier between plaintiff and defendant had not commenced when the accident occurred, and that defendant *162then owed no duty to the plaintiff as a passenger, and, if it owed him any duty at all, it was as a trespasser. Surely, the mere fact that the plaintiff had a ticket in his pocket did not give rise to any relationship as passenger; for, if so, then the absurd conclusion would be forced upon us that such relationship arose when the plaintiff was up at the fair grounds, or any other place in Columbia, where he had the ticket in his pocket. When, then, did this relationship arise? 'The only reasonable answer is, when the plaintiff presented himself at the proper time and place to take the train by which he desired to be transported to his destination, and certainly not when he presented himself for that purpose at an improper time and place, after the train had started, and attempted to enter a car which it was apparent was not intended for the transportation of passengers; a fact which was evidently known to plaintiff, for he says that he thought the car which he got on was the second class car— the car on which he was accustomed to ride — and did not notice that it was a baggage car. Indeed, it must be assumed that every one knows that a baggage car is not the proper place for passengers, and that a railway company, which is held to the strictest accountability for the safe delivery of baggage entrusted to its care, could not with safety permit passengers to ride in a baggage car. If the plaintiff, with his ticket in his pocket, had got on the pilot, or the engine itself, or upon the tender, or upon the express car, it certainly could not, with any propriety, be said that he had thereby established the relationship of passenger between himself and the company. Why? Simply because such' places are not the proper places for passengers to be received or transported; and it seems to me that the same may be said of a baggage car. If, then, the relationship of passenger and carrier had not been established be- I tween plaintiff and defendant at the time of the accident, it j is clear that the defendant company owed no duty to theJ plaintiff, except such as it might owe him as a trespasser; for, as was said by Mr. Justice Gary, in Littlejohn v. R. & *163D. Railroad Co., 49 S. C., at page 17, upon the authority of Darwin v. Railroad Co., 23 S. C., 531, it is clear “that a person who obtrudes himself upon a railroad train may be a trespasser when the railroad company has notice of such obtrusion., and does not object, even when no injury is done to the property of the railroad company.”
So that the next inquiry presented by the motion for a nonsuit is whether the testimony tended to show that there was any negligence on the part of the defendant company in the performance of such duty as it owed to the plaintiff as a trespasser. As is said in Darwin v. Railroad Co., supra, at page 535, while this Court does not go to the extent which some of the cases elsewhere seem to have gone, in holding that a railroad company owes no duty to a trespasser, but, on the contrary, holds that “no one can safely disregard the ordinary instincts of humanity and shield himself from responsibility for an injury done, even to a trespasser, by its wanton or reckless disregard of such instincts;” yet there is no case in this State, so far as I am informed, which defines the measure of duty which a railroad company owes to one who unlawfully intrudes upon its engines or cars; and no such rule or measure is prescribed in Darwin’s case, nor shall I undertake, here, to lay down any such rule or measure. It is enough to say, as was said in Carter v. C. & G. Railroad Co., 19 S. C., 20: “It would, no doubt, require a much stronger case to make out negligence as to a trespasser, than is required in ordinary cases.” Now, the only evidence in this case which even tends to show (if, indeed, that does,) any improper conduct on the part of the defendant company, or any of its servants or agents, was the fact testified to by the plaintiff, that he was ordered by a person in the baggage car, who is assumed to have been the baggage-master, to get off that car while the train was in motion. Even if it be conceded that this single fact would be sufficient to show negligence or improper conduct towards a passenger, I do not think it even tends to show any negligence or improper conduct on the part of *164the defendant company towards a trespasser. There is not the slightest evidence that the baggage-master, in giving this order, did so in pursuance of any authority vested in him by the defendant company; nor is there any evidence that the baggage-master was an improper person to be entrusted with the performance of the duties committed to him, nor any evidence that the company knew, or ought to have known, that he was an unfit person to be entrusted with the performance of the duties incident to his position, nor that the baggage-master acted wantonly or recklessly in giving the order at the time, and under the circumstances, in which he gave it. It seems to me that there was a total lack of evidence tending to sustain the plaintiff’s cause of action, and hence there was error in refusing the motion for nonsuit.
Having reached this conclusion, which necessitates a new trial, it is unnecessary, and would perhaps be improper, to consider the other questions raised by this appeal.
I think the judgment of this Court should be, that the judgment of the Circuit Court be reversed, and that the case be remanded to that Court for a new trial.