delivered the opinion of the court.
This action being based on the alleged negligence of the defendant, which caused the injury to the plaintiff, a question which directly concerns the burden of proof arises at once as to the status of the plaintiff with relation to the carrier. Was he a passenger? If so, it is conceded that the burden of proof was thrown on the defendant to show that the accident happened without the fault of the defendant. N. J. R. R. Co. v. Pollard, 22 Wallace, 341. Under the evidence set forth in the prefixed statement, there can. be no doubt, if plaintiff was a passenger, that there was ground for the recovery, that the cause was tried by the court below, and instructions given, on a theory of the law as favorable to the defendant as was justified, and that the judgment should be affirmed. If the cause turned upon this question exclusively, we should hold that the plaintiff was a passenger in the defendant’s care at the time of the accident.
Under a custom of years known, as we think the evidence shows, to all the agents of the defendant company who had charge of the arrangement of the defendant’s railroad yards and of the course of the transhipment of the mails at Decatur from one train to another at the defendant’s station, the plaintiff and his co-employees in the U. S. mail service between Decatur and Quincy had arrived in Decatur in mail car 230 at 11:15 each evening, had occupied the car all night in the yards of the company, had received mail in it brought by baggagemen of the defendant between eleven and twelve o’clock, had been in charge of that mail during the night in the car, had received more mail between three and four in the morning, and had been at work in the lighted car from 3:30 on to the time of their departure in it at 4:45 on the return trip. In view of the participation of the defendant’s agents in this routine connected with car Ho. '230 for years, we should find it difficult to believe that the yard conductor had not good reason to know or believe that at 4 o’clock a. m. on the night in question, and on every other, there were persons in the car who were there in the discharge of their duties preparatory to a run on the road between Decatur and Quincy, who were there hy arrangement and agreement, express or implied, between the railroad company and -them, or between the railroad company and their employers, (which would he the same thing), and who were entitled by virtue of such arrangement or agreement (to say nothing of the statutes of the United States, which he was presumed to know) to transportation as passengers when the train began its journey. The yard master testifies, it is true, that he did not know whether anybody slept in the car. He certainly could not have supposed that hags of letter mail were put into an empty car, and the doors left open, without lights, and the car then carried around the yard wherever it happened to be convenient to put it, as “dead equipment,” in charge of nobody. It did not need knowledge on his part of the undisputed fact that for at least six years this never had occurred, to render it improbable to him that it was occurring or would occur.
Under these circumstances we think the plaintiff was a passenger in the car at all times throughout the-night—certainly at the time of the accident in the morning.
A passenger need not have paid fare or be intending to pay fare.- A passenger, according to standard definitions, is one who undertakes, with the consent of the carrier, to travel in the conveyance provided by the latter otherwise than in the service of the carrier as such. Shearman & Redfield on Negligence, sec. 488.
Leaving out of consideration for the moment the fact that the car was not in. the made up train and upon its journey, but was being switched into its place at the time of the accident, it would seem that the plaintiff comes under this definition. This is impliedly at least conceded by counsel for appellant, who term a mail agent) when the train is actually on its journey, “a gmsi-passenger.” We do not think that there is any distinction between a ‘"‘"guczsi-passenger” and “a passenger.” The language of the English and American Encyclopedia of Law (2nd ed., Vol. V., page 511) is, “a postal clerk employed in the service of the government and engaged in its service, traveling on a train, whom by contract with government the company is bound to carry, must be considered a passenger for hire—at least in so far as the company’s liability for his personal injuries through negligence is concerned.”
This is fully borne out by the authorities which are there collected. Gleason v. Virginia Midland R. Co., 140 U. S. 435; Arrowsmith v. Nashville & Decatur Railroad Company, 57 Fed. Rep., 165; Baltimore & Ohio Ry. v. Voigt, 176 U. S., 498-518; C. C. C. & St. L. R. R. Co. v. Ketcham, 133 Ind., 346; Mellor v. Missouri Pacific R. Co., 105 Mo., 455; Seybolt v. Railroad Co., 95 N. Y., 462; Gulf Ry. Co. v. Wilson, 79 Texas, 371; and other cases.
The case of Blank v. Illinois Central R. R. Co., 182 Ill., 332, is not at "variance with this rule. It is merely concerned with an express messenger whose employer has contracted him out of the ordinary rights of a passenger—a situation which is expressly distinguished from that of a postal clerk by B. & O. R. Co. v. Voigt, supra.
The apparent exception to the rule indicated by the case of the Pennsylvania Co. v. Price, 96 Pa. St., depends upon a peculiar limitation to the Campbell Act of Pennsylvania, and merely deals with the meaning of the word “passenger” in that limitation. The dismissal of the writ of error in that ease by the U. S. Supreme Court, 113 U. S., 218, turns wholly on the position that the U. S. statutes made no Federal question in the case. It is not in point here.
The statutes of the United States, however (Revised Statutes of The United States, sec. 400), are significant in this case so far as this: By providing that every railway company carrying the mail, shall carry on any train which may run over its road, and without extra charge therefor, all mailable matter directed to be carried thereon, with the persons in charge of the same, they remove entirely the necessity, if it would otherwise exist, of showing by contract between the Government and the defendant an. agreement to carry persons in charge of the mails said defendant was receiving and transhipping at Decatur and carrying to Quincy.
But the appellant insists that whatever might have been the status, of the plaintiff when actually en route, he was not a passenger at the time of the accident because he was not then en route and the train was not made up, nor the car at the station platform. ■
It is not necessary, however, in order to create the relation of carrier and passenger, that the passenger should have actually entered the vehicle for carriage—much less that the vehicle should have started on the journey with him. This is rudimentary. It is needless to cite authorities. Where, for example, the carrier provides a waiting room for the use of passengers, entry into those premises with intent to travel under the carrier’s charge is sufficient to give the rights of a passenger for a reasonable time before the journey begins. The car, therefore, did not have to be en route to constitute the plaintiff a passenger. But counsel say it was not at the place where it was appropriate and proper for passengers to take it, and therefore the plaintiff had no right to be in it, and no relation of carrier and passenger was established. In support of this position they urge with much insistence the opinion of the Circuit Court of Appeals of the United States for the Sixth Circuit, in the case of Farley v. Cincinnati, Hamilton & Dayton R. R. Co., 108 Fed. Rep., 14. notwithstanding some of the circumstances of the accident itself in that case were very similar to those in the case at bar, the essential matters governing the decision were very different, and the implications of the opinion seem to us much stronger for the appellee’s contention than for the appellant’s. In that case the postal clerk injured had not arrived at Cincinnati in the car; he was simply to take it on its out trip. There was no custom proven for any clerk to board the car or any mail to be delivered to it until it arrived at the express platform before going out. On the contrary the exact antithesis of this custom was proven, and in fourteen years only three departures from it were known. Therefore, there being no evidence of any knowledge on the part of defendant of any custom for the clerk to be in the car at the place where the accident happened, nor of any actual knowledge that he was there, nor evidence indeed of any custom for him to be there, and that place being an unusual and inappropriate one for him to take the car, and he having taken it before it was ready and before mail was delivered to it, the court held that the relation of carrier and passenger had not been created— a very obvious conclusion. The court said: “The difficulty to a railroad company in exercising a high degree of care towards persons on cars in motion in its switch yards, and the increased liability from obligation to do so, are so manifest that a usage or custom relied on to create the relation of carrier and passenger and impose on the railroad company this high duty, ought, under such conditions upon the plainest principles of justice, to be established by evidence which shows or strongly tends to show a well defined, definite and continuous practice from which knowledge on the part of the Company may he fairly inferred.”
We agree with this entirely; hut in the present case the verdict of the jury under the instructions given to them may well have implied that they thought the test here laid down was met. We think that it was. We fail to see in the present case why the plaintiff should not, during the entire night, have been considered a passenger in the care of the carrier as fully as a person might he in a sleeping car switched or shunted during the night to side tracks, as such cars frequently are, at termini or connecting centres, to wait for transfer to some outgoing morning train, or for the more convenient disembarkation of the passengers by daylight. Certainly it could not under such circumstances he claimed that the passengers were mere licensees in their occupation of the car.
As before indicated, if the plaintiff be considered a passenger, nothing more is necessary to dispose of the contention before us. If, however, it should be conceded that he was not a passenger, or that, as appellant contends, he is estopped from claiming that he was a passenger by reason of having voluntarily discontinued as to the first count of his declaration, we should still he obliged to hold that the circumstances proven were sufficient to show the plaintiff to he a person impliedly invited by defendant to he where he was when the accident occurred, and that at the very least the defendant was hound to exercise towards him reasonable care. The contention of appellant that he was a mere licensee, to whom nothing more than abstention, from wanton and wilful injury was due, seems to us without force. If the burden was on the plaintiff to prove negligence and want of reasonable care on the part of the defendant, proper instructions favorable to the defendant were given to the jury on that assumption, and we do not think the verdict of the jury could he held inconsistent with the evidence.
If sound automatic Gould couplings never or seldom "part in such a switch as this, then the principle of res ipsa loquiiur, might be applied, and it might be said that either the couplings were at fault, which would render the defendant liable, or that the yard master was negligent in not seeing that the coupling had been properly made before he signaled the engineer to move out from the pocket.
But if, as appellant insists,, these couplings frequently and unaccountably do part in switches like this, then the' yard master, knowing that a lighted car in which clerks were at work was in the cut of cars which he was switching, should not have drawn the cars out without leaving a man at the switch lever. Such' a lookout man could have prevented the accident by warning the engineer against too immediate a stop beyond the switch. Indeed, in such a case the jury might have been justified in believing that the engineer in any event brought his locomotive to a stop too soon. We think that there was no evidence of contributory negligence on the part of the .plaintiff, that the jury were justified on the facts in their finding, that the instructions given were, under the view of the law which we hold, as favorable as defendant was entitled to, that there was no reversible error in the admission of evidence, that the counts of the declaration were at least sufficient after verdict, and that substantial justice has been done. Wo shall not disturb the judgment, which is affirmed.
Affirmed.