gets upon a car or train without intending to pay fare, and without the knowledge of the carrier, or his express or implied consent or invitation to ride as a passenger, is not a passenger, but at most a stranger, if not a trespasser, and is entitled to but ordinary care.50 Nor can an infant maintain an action against the carrier for injuries received before birth.51

11. Gratuitous passenger.

Sec. 1021. (§ 566.) Care and diligence due to a gratuitous passenger. It is enough that the person is being lawfully carried as a passenger to entitle him to all the care which the law requires of the passenger carrier; and the same vigilance and circumspection must be exercised to guard him against injury when he is carried gratuitously, as upon what is known as a free pass, or by the carrier's invitation, as when he pays the usual fare. The leading case upon this point is that of The Philadelphia & Reading Railroad Company v. Derby,52 in which it appeared that the president of one railroad company had invited that of another to take a ride upon the road of the former. This invitation was accepted, and, during the ride, the invited president was injured by a collision upon the road, caused by the negligence of its agents, for which he sued. the road. It was urged, on behalf of the defendant road, that no damages could be recovered for an unintentional injury by one who was, at the time, merely partaking of the hospitality of the defendant, and with whom there was. no contract, either express or implied. But this defense was not sustained by the court, and it was held that the plaintiff, having been. lawfully on the road at the time of the collision, none of the antecedent circumstances or accidents of his situation could affect his right to recover; and it was said that, independently

Kan. 627.

50. Railroad Co. v. Flinn, 24 App. 441; Daubert V. Western Meat Co., 139 Cal. 480, 73 Pac. Rep. 244, 96 Am. St. Rep. 154. 52. 14 How. 468.

51. Allaire v. St. Luke's Hospital, 184 Ill. 359, 56 N. E. Rep. 638, 48 L. R. A. 225, affirming 76 Ill.

of the question of contract, the defendant was under an obligation of duty to carry the plaintiff safely. This duty, it was said, does not result alone from the consideration paid for the service. It is imposed by the law, even where the service is gratuitous. The confidence induced by undertaking any service for another is a sufficient legal consideration to create a duty in the performance of it.53

Sec. 1022. (§ 567.) Same subject-The rule stated. This, it will be observed, is different from the well-settled rule in regard to the gratuitous carriage of goods, which, as has been seen, does not impose upon the common carrier the same degree of responsibility as when the carriage is for compensation, and this illustrates the different light in which the two kinds. of business are viewed by the law. The carrier of goods becomes an insurer of their safety only when he is paid to become so; but the carrier of the passenger is bound to the utmost care and caution, whether paid by the passenger or not; and this distinction is based upon wholly different reasons of public policy, being, in the one case, the value which it puts upon human life and personal safety, and in the other, the necessity of preventing frauds and combinations, to the "undoing of all persons" who may have dealings of that kind with the carrier. This distinction between the gratuitous bailment. of goods to the carrier, and the gratuitous carriage of the passenger, is, upon this ground, well established, and, in the latter case, the carrier's liability is the same as when he is paid for the carriage.54

53. Coggs v. Bernard, 1 Smith's Chattanooga Rapid Transit Co. v. Ld. Cases, 283.

54. Thompson v. Railroad Co., 47 La. Ann. 1107, 17 So. Rep. 503; Rogers v. Steamboat Co., 86 Me. 261, 29 Atl. Rep. 1069, 25 L. R. A. 491; McNeill v. Railroad Co., 135 N. Car. 682, 47 S. E. Rep. 765, citing Hutch. on Carr.; Williams v. Railroad Co., 18 Utah, 210, 54 Pac. Rep. 991, 72 Am. St. Rep. 777;

Venable, 105 Tenn. 460, 58 S. W. Rep. 861, 51 L. R. A. 886; Simmons v. Railroad Co., 41 Ore. 151, 69 Pac. Rep. 440, 1042; Gillenwater v. The Railroad, 5 Ind. 339; Washburn v. The Railroad, Head, 638; Littlejohn v. Railroad Co., 148 Mass. 478; Wilson v. Railroad Co., 107 Mass. 108; 125 Mass. 130;, Commonwealth v. Railroad Co., 108

12. Fare and its payment.

Sec. 1023. (§ 567a.) Amount of fare-State regulation— Discriminations.-The amount of fare that may be charged by public carriers is, in modern times and particularly in the case of such important carriers as railroad, street railway, sleeping-car and ferry companies, usually regulated by statute. Such regulation, as has been seen, where it is reasonable in its limits and does not amount to confiscation or the taking of private property for public use without compensation, is held to be within the power of the state legislatures.2

Where no such statute is found, however, the carrier is entitled to demand and receive, and the passenger is entitled to be carried upon tendering, a reasonable compensation, and what is reasonable is, here as in other cases, ordinarily a question of fact to be determined in view of all the circumstances of each particular case. If the rate has been fixed by usage, the passenger, in the absence of special circumstances, would be entitled to carriage upon tendering the usual rate.5

So here, as in the case of the carriage of goods, the passenger is entitled to be carried without unusual, unjust and

Mass. 7; Prince v. Railway Co., 64 Tex. 144; Austin v. Railway Co., L. R. 2 Q. B. 442.

1. Ante, § 574 et seq.

2. Wellman v. Railway Co., 83 Mich. 592; Munn v. Illinois, 94 U. S. 113; Railroad Co. v. Iowa, 94 U. S. 155; Peik v. Railway Co., 94 U. S. 164; Railroad Co. v. Ackley, 94 U. S. 179; Ruggles v. Illinois, 108 U. S. 526; Stone v. Trust Co., 116 U. S. 307; Dow v. Beidelman, 125 U. S. 680; Banking Co. v. Smith, 128 U. S. 174; Railway Co. v. Minnesota, 134 U. S. 418; Railway Co. v. Gill, 54 Ark. 101, 15 S. W. Rep. 18.

railroads to issue free transportation to shippers of live stock and naming no consideration, such as that the shipper should care for the stock, is unconstitutional. Railway Co. v. Campbell, 61 Kan. 439, 59 Pac. Rep. 1051, 48 L. R. A.' 251, reversing (Kan. App.) 36 Pac. Rep. 509.

3. Spofford v. Railroad Co., 128 Mass. 326; McDuffee v. Railroad Co., 52 N. H. 430; Johnson r. Railroad Co., 16 Fla. 623. 4. Ante, § 521. 5. Spofford v. supra: Ante, § 521.

Railroad Co..

6. McDuffee V. Railroad Co.,

A legislative act requiring the supra; Ante, § 521.

unreasonable discrimination. This does not mean that all passengers shall be carried for the same rate, but that no passenger, under usual conditions, shall be required to pay more. than the statutory rate if any is fixed, or more than the usual rate where the rate has been so established, or more than a reasonable rate where neither a statute nor a usage has prescribed the amount.s

Sec. 1024. (§ 567b.) Payment of fare-How made-Making change. As will be seen in the following sections, it is competent for the carrier to require those desiring to become passengers to purchase tickets before entering the vehicle, and either to refuse to carry them at all without tickets, or to do so only upon the payment of a greater fare. He may also require prepayment of the fare. In the absence of such requirements, however, it is sufficient if the passenger is ready to pay when demanded of him during the journey, and where he in good faith enters the vehicle, being ready and willing to pay when the fare is so demanded, he is properly to be regarded as a passenger. Such a passenger is entitled to a reasonable time and opportunity to pay, as to go from one car to another of a railroad train to obtain the money.10 He is not bound to have and tender the exact change, but may tender his fare in lawful

7. Johnson v. Railroad Co., If a passenger tenders the supra; Spofford v. Railroad Co., supra; Atwater v. Railroad Co., 48 N. J. L. 55; Phillips v. Railway Co., 114 Ga. 284, 40 S. E. Rep.

268.

A railroad company cannot of itself make or authorize such use to be made of its right of way as would enable it to collect from the traveling public a greater rate of fare than by law it would be permitted to collect. Southern Pac. Co. v. Patterson, 7 Tex. Civ. App. 451, 27 S. W. Rep. 194.

8. Ante, § 521; Spofford v. Railway Co., supra.

statutory legal fare, and is ejected, he is entitled to damages. And where the ejection takes place in the presence of 30 to 35 passengers, and he is compelled to walk 5 miles, $650 damages are not excessive. Chamberlain v. Railway Co., 122 Mich. 477, 81 N. W. Rep. 339.

9. White v. Railway Co., 26 W. Va. 800; Bartlett v. Steamboat Co., 57 N. Y. Super. 345, Ford v. Railroad Co., 110 La. 414, 34 So. Rep. 585.

10. Clark v. Railroad Co., 91 N. C. 506.

money in a reasonable sum, and the carrier must accept such tender and furnish change to a reasonable amount.11

Sec. 1025. (§ 567c.) Same subject-Who liable for fare— Adult and child.-A person who takes with him on his own account another person as a traveling companion is, of course, liable for that other's fare.12 Thus a person traveling with a child in his custody is liable for the payment of the child's fare, and he may be ejected with the child when he refuses to pay the latter's fare.13

So, conversely, where a parent traveling with his or her child has paid the proper fare for the child, but the conductor wrongfully refuses to recognize the child's right to ride, though offering to carry the parent, and ejects the child, the parent may get off also and recover for the wrongful ejection

of both.14

Sec. 1026. (§ 567d.) Same subject-Paying fare or buying ticket with counterfeit money.-As payment in counterfeit

11. Barrett v. Railway Co., 81 Cal. 296, distinguishing Fulton v. Railroad Co., 17 U. C. (Q. B.) 428. In the Barrett case a tender of a five-dollar gold piece, the smallest sum he had, for a five-cent fare on a street railroad, was held reasonable. In the Fulton case, tender of $20 for a fare of $1.35 was held unreasonable.

A genuine coin which, though worn smooth by use, is not appreciably diminished in weight or undistinguishable in denomination, is a valid tender. Morgan v. Railroad Co., 52 N. J. L. 60, 558.

But a conductor is not bound to accept a dollar bill from which a portion has been torn which might aid in determining whether it is genuine. Railway Co. v. Anderson, 61 N. J. Law 248, 39 Atl. Rep. 905, 68 Am. St. Rep. 703.

Nor is he obliged to accept the

passenger's jewelry as a pledge to secure the fare. Railway Co. r. Smith, (Tex. Civ. App.) 84 S. W. Rep. 852.

12. This rule applies where both are adults, as, for instance, brother and sister, and one has assumed the care and responsibility of the other in such a way as to become liable for the fare. Railway Co. v. Faulkner (Tex. Civ. App.) 56 S. W. Rep. 253, 63 S. W. Rep. 655.

13. Philadelphia, etc. R. Co. v. Hoeflich, 63 Md. 300; Pittsburgh, etc. R. Co. v. Dewin, 86 III. 296; Warfield v. Railroad Co., 104 Tenn. 74, 55 S. W. Rep. 304, 78 Am. St. Rep. 911, citing Hutch. on Carr.

14. Gibson v. Railroad Co., 30 Fed. Rep. 904; Braun v. Railway Co., 79 Minn. 404, 82 N. W. Rep. 675, 984, 49 L. R. A. 319, 79 Am. St. Rep. 497.