delivered the opinion of the court:
This case was before this court on a former appeal, and the judgment appealed from was reversed. (Illinois Central Railroad Co. v. O'Keefe, 154 Ill. 508.) The case has been again tried, resulting in a verdict and judgment for $3000, and the Appellate Court has affirmed that judgment.
The facts will be found stated in the former report of the case, and will not be répeated in full in this opinion. The ground upon which defendant was charged at the trial with liability for the death of O’Keefe was, that he became a passenger on defendant’s train from Anna to Carbondale, and was killed through the negligence of defendant in the collision with the other train. At the close of the evidence the defendant asked the court to instruct the jury that such evidence was not sufficient to authorize a verdict for the plaintiff, and that they should find the defendant not guilty. The instruction was refused and the defendant excepted. The contention here is, that the instruction should have been given because the evidence did not fairly and legally tend to prove that deceased was a passenger or that he was exercising ordinary care and prudence when killed, while it was necessary for the plaintiff to establish both these propositions by some affirmative evidence in order to recover.
Considering the latter of these propositions first, a reference to the opinion of the court upon the former appeal shows that the judgment was reversed for error of the court in instructing the jury, as matter of law, that it was not negligence, of itself, for O’Keefe to ride on the steps or platform of the car. It was further said that an assumption of negligence on the part of the defendant, or that the deceased was not negligent, could not be stated, under the facts of the case, as a matter of law. The evidence did not greatly differ in the two trials, and we adhere to the previous holding that on the question of negligence the case might properly have been submitted to the jury.
It was also necessary for the plaintiff to prove that the relation of passenger and carrier existed between the deceased and the defendant. This relation which was claimed to exist is a contract relation. A railroad company holds itself out as ready to receive and carry, and is bound to receive and carry, all passengers who offer themselves as such at the places provided for taking passage on its trains, and who take such passage in the cars provided for passengers. When one so presents himself the contract relation under which he acquires the rights of a passenger may be either express or maybe implied from the circumstances. If a person goes upon cars provided by the railroad company for the transportation of passengers, with the purpose of carriage as a passenger with the consent, express or implied, of the railroad company, he is presumptively a passenger. (Elliott on Railroads, sec. 1578.) Both parties must enter into and be bound by the contract. The passenger may do this by putting himself into the care of the railroad company to be transported, and the company does it by expressly or impliedly receiving him and accepting him as a passenger. The acceptance of the passenger need not be direct or express, but there must be something from which it may be fairly implied. One does not become a passenger until he has put himself in charge of the carrier and has been expressly or impliedly received as such by the carrier. (Bricker v. Railroad Co. 132 Pa. St. 1; Webster v. Fitchburg Railroad Co. 161 Mass. 298; Elliott on Railroads, sec. 1581.) Deceased was the holder of a free pass on the road, but that fact alone would not create the relation of passenger and carrier. The purchase of a ticket does not make one a passenger unless he comes under the charge of the carrier and is accepted for carriage by virtue of it. If a ticket holder should offer himself as a passenger and should be refused transportation there would be a liability for consequent damages, but it would not be a liability to him as a passenger or on account of the relation of passenger and carrier, but would be a liability for the refusal to enter into that relation and to permit him to become a passenger.
The uncontroverted evidence bearing upon the question whether O’Keefe became a passenger was as follows: He lived about three hundred yards north and fifty yards east of defendant’s station at Anna. The limited vestibule train on defendant’s road came from the south and stopped at the station while he was sitting at the table at home, eating breakfast. The train consisted of a baggage car, two coaches and a sleeping car. It was a solid vestibuled train, the vestibules filling the spaces between the cars, with a door at each entrance and exit to and from the platforms of the passenger coaches. These doors are opened at the stations to discharge passengers who have reached their destination and to receive those desiring to become passengers, and these are the places where passengers present themselves to take passage. While this train was at the station at Anna it was prepared for the reception of passengers who desired to be transported to other stations, by opening the doors, and passengers for Anna were discharged at the station. When the doors are closed a person on the outside can not get in, and when the business at that station had been done the doors designed for the admission of passengers were closed, and the train left the station as a solid train, closed and inaccessible up to the platform next the tender, in front of the baggage car. When the train was moving from the station O’Keefe took his hat and ran out of the door, and ran to the railroad track and south toward the approaching train. When he met the train it was going three or four miles an hour, and he climbed on the platform next the tender, at the front end of the baggage car. As he passed his house his wife saw him standing on the platform with his back against the baggage car door. The engineer and conductor saw him climb on the platform but did not see him afterward, and the conductor did not know who he was. He was not seen after his wife saw him until he was found dead, sitting on the step of the platform, holding the guardrail with one hand. When found he had a piece of paper in one hand and a pencil was lying on the ground. After leaving Anna the conductor went through the train, commencing at the north end of the first passenger coach next the baggage car and going the entire length of the train. He then came back, unlocked the door to the baggage car, and went in, as he said, to see about the person who got on the platform, and, seeing the other train approaching, he and the baggageman jumped off through the side door.
The question is whether these facts fairly tend to establish the relation of passenger and carrier between O’Keefe and the defendant, by showing that he had put himself in the care of the defendant as a passenger, and had been expressly or impliedly received and accepted as such by the defendant through any authorized agent. We think that they do not. He did not go upon the train at the station provided for the reception of passengers, and did not take any place provided for the reception, accommodation or carriage of passengers. He did not comply with any of the ordinary customs under which defendant held itself out as ready to receive and carry passengers or under which they are received or carried. It is said that he no doubt tried to open the baggage car door, and the inference intended is, that he tried to put himself in charge of defendant as a passenger, in a proper place. There is no evidence of the supposed fact, and if there were it could make no difference. It will certainly not be claimed that defendant was bound to have the baggage car door open so as to give access to its passenger coaches by way of the baggage car. But even if that were a wrong to him, he could not become a passenger by attempting to get in that door any more than if he had attempted to open one of the vestibule doors which was locked, and had failed. He had not put himself in the care of the defendant as a passenger. Of course, the fact that the engineer knew that deceased climbed upon the train would not make him a passenger, since an engineer is not authorized to act for the defendant in such a matter or to accept passengers. Nor do we think that the mere fact of the conductor knowing that some one had boarded the moving train on the platform between the tender and baggage car, and might still be there, is evidence tending to show that defendant accepted him as a passenger. The conductor did not know who he was or what he was there for,—whether as a passenger or otherwise. As conductor he performed the usual duties after leaving the station, and had not reached this platform next the tender when the accident occurred. He had done nothing in the matter one way or the other. The train was moving slowly when O’Keefe climbed on. But that fact is only material on the question of negligence on his part in boarding a moving train. The train had left the station, and there would be no difference, so far as creating a relation of passenger and carrier was concerned, whether he got on there or at some other place between stations where the train was moving slowly. Of course, he might have ridden on the platform in safety but for the collision, and so also he might on the engine or tender, or elsewhere on the train where passengers are not carried. That fact concerns only the question of negligence, and is not material on the question whether he became a passenger.
As we have concluded that there was no evidence tending to establish one necessary element for a recovery,—that the deceased was a passenger on defendant’s train,—it follows that for such failure of proof the instruction asked should have been given.
The judgments of the Appellate Court and" circuit court are reversed and the cause is remanded to the circuit court.
Reversed and remanded.