and passenger was incidental and not necessary to the decision; also that the court's treatment of the subject of the relation of carrier and passenger was based on the evidence in that case that appellee was just alighting from the car. A reading of the opinion in that case discloses that these contentions cannot be sustained. While there were other features in the case, and while the relation of the parties was not discussed at length, the court in its opinion makes no distinction between circumstances where the person claiming to be a passenger is alighting or has alighted from the car, but holds that by reason of the fact that appellee was on a continuous journey the relation of carrier and passenger existed. Nor is it true that such holding was not necessary to the determination of the case. Instructions were given in that case based on the theory that appellee was a passenger, and the opinion sustains those instructions. We think it clear from the decision in that case that the doctrine is there laid down that, where a passenger, in pursuance of a continuous journey, transfers from one car to another under circumstances such as shown in this record, the relation of carrier and passenger continues throughout the necessary acts of such transfer. To the same effect is North Chicago Street Railroad Co. v. Kaspers, 186 Ill. 246. In that case the appellee had alighted from one street car, had crossed over the street, and was in the act of taking another car to which he was to transfer, when the same started up and threw him to the ground. It was there held that he was a passenger. In Chicago & Alton Railroad Co. v. Winters, 175 Ill. 293, the appellee was a passenger on a stock train. When that train stopped at one of its stations appellee was obliged to alight from the caboose in which he was riding in order to get into another caboose which was to be attached to a new train more than a block north of the point where the train on which he was riding had stopped. When he alighted and was on his way to a lunch counter to get lunch and thereafter to take the other caboose, he was struck by another train and injured. It does not appear that he was walking upon a platform or any part of the appellant's premises provided for passengers to alight from trains, but it was nevertheless held that the relation of carrier and passenger continued.2

While the holdings of the courts of this country have not been uniform upon this question, notably those of Massachusetts and

2 As to steam railroads see Watters v. Philadelphia B. W. R. Co. (1913), 239 Pa. 492 (leaving for refreshments); Alabama & R. Co. v. Coggins (1898), 88 Fed. 455 (leaving to send telegram); Gannon v. C. R. I. & P. Ry. Co. (1908), 141 Ia. 37 (taking exercise); Lemery v. Great Northern Ry. Co. (1901), 83 Minn. 47 (leaving temporarily without consent of operatives at an unusual stopping place).

8

Tennessee holding that the relation of carrier and passenger ceases where one alights from a car in a public street for the purpose of transfer (Creamer v. West End Railway Co., 156 Mass. 320; Chattanooga Railway Co. v. Boddy, 105 Tenn. 666); we are of the opinion that the weight of authority in this country sustains the view that where, as here, a passenger who is making a continuous journey alights from a street car for the purpose of making a transfer, the relation of carrier and passenger continues while he is in the necessary act of making said transfer, and that, if he be injured through the negligence of the carrier while making such transfer, the carrier is liable. Keator v. Scranton Traction Co., 191 Pa. 102; Wilson v. United Railway Co., 167 Mich. 107; Colorado Springs & Cripple Creek Dist. Railway Co. v. Petit, 37 Colo. 326; Whilt v. Public Service Corp., 76 N. J. L. 729; 10 Corpus Juris, 630.

It is urged by defendants in error that plaintiff in error was no more a passenger than was another man named Burke, who had alighted from the front end of the car and was injured at the same time. This contention, however, overlooks the fact, as appears from the record, that Burke had finished his journey and had left the car. There is no doubt, under all the authorities, that where a passenger alights into the public street from a street car at the end of his journey he ceases to be a passenger. The distinction between Burke and plaintiff in error lies in the fact that the plaintiff in error was engaged in a continuous journey, while Burke's journey, so far as the carrier was concerned, had ended. As was held in Chicago City Railway Co. v. Carroll, supra, the ticket of transfer itself was not what established the relation of carrier and passenger, but was merely the evidence of the fact that plaintiff in error was engaged in a continuous journey. This fact affords the test whether or not plaintiff in error was a passenger, and while it is true that during such transfer the carrier could exercise no control over the movements of the passenger, so as to render the carrier liable in case of injury received from some other source than the carrier, still that fact does not change the relation of carrier and passenger in the case of such transfer, nor lessen the degree of care which the carrier was bound to use to avoid injury to such passenger, through the negligence of its own servants or agencies, while such passenger is engaged in the necessary acts of such transfer.

...

The judgment of the Appellate Court will therefore be reversed, and the judgment of the circuit court of Cook county affirmed.

3 See Niles r. Boston El. Ry. Co. (1917), 225 Mass. 570. Cf. Tompkins v. Boston El. Ry. Co. (1909), 201 Mass. 114.

644

Judgment of Appellate Court reversed.
Judgment of circuit court affirmed.

CARTWRIGHT, J., and DUNN, C. J., dissenting:

We do not agree with the conclusion that the plaintiff, as a matter of law, was a passenger while walking on the public street. The rule of law as to what will constitute the relation of passenger and carrier has been firmly established by text-books and decisions, which were carefully reviewed and considered in the case of Chicago & Eastern Illinois Railroad Co. v. Jennings, 190 Ill. 478. Upon such review and consideration it was said to be uniformly held that the condition must be such that the passenger is under the care of the carrier and must be at some place under the control of the carrier provided for passengers, so that it may exercise the high degree of care exacted from it. The plaintiff, having safely alighted from the defendant's car, started to the place where he expected to take another car, and while walking on the street was not under the care of the defendant nor on any place provided for passengers or using any of the facilities furnished for passengers, but was exercising his right as one of the general public by crossing the street, as he lawfully might. In the Jennings Case the doctrine of the Massachusetts court, which is now abandoned. was indorsed and adopted. This court has never decided that the relation of carrier and passenger existed under the facts of this In Chicago & Alton Railroad Co. v. Winters, 175 Ill. 293, the plaintiff was accompanying his carload of sheep to Chicago, and at Bloomington the car was placed in another train being made up for Chicago. The plaintiff was walking on the east side of the freight train toward the switchyards on the grounds of the railroad company, intending to continue his journey in the caboose of the new train. There is no resemblance between this case and that of North Chicago Street Railroad Co. v. Kaspers, 186 Ill. 246, except that the plaintiff had a transfer ticket. That ticket entitled him to ride on the cable car line to his destination, and he had got on the step at the front end of the car and was stepping up on the front platform when the speed of the train was increased and he fell off and suffered the injury for which he sued. In Chicago City Railway Co. v. Carroll, 206 Ill. 318, a trolley pole on the Wentworth avenue car, from which the plaintiff had alighted or was alighting, fell from that car and struck him on the head. He had not got away in safety from the car, as the plaintiff had in this case, in which the plaintiff was not within the care or control of the defendant or on a place provided for passengers, and

case.

therefore was not a passenger. Illinois Central Railroad Co. v. O'Keefe 168 Ill. 115.*

MILLER, J. IN MIDDLETON v. WHITRIDGE.

213 N. Y. 499. 1915.1

It will be useful to determine at this point precisely what duty the defendant owed the deceased. If a passenger becomes sick and unable to care for himself during his journey, it seems plain that the carrier owes him an added duty resulting from the change of situation. That duty springs from the contract to carry safely. Of course, the carrier is not bound, unless it has notice of the fact, to observe that its passenger is ill, but if the defendant's servants knew, or had notice of facts requiring them, in the exercise of reasonable prudence, to know that the deceased was sick and in need of attention, it was their duty to give him such reasonable attention as the circumstances and their obligations to other passengers permitted, and if they knew, or under the rule stated should have known, that he was too ill to remain on the car with safety, it was their duty, if practicable, to remove him and put him in the custody of an officer or some one who could look after him. Whilst no case precisely like this has been found, the general obligation of the carrier in such cases has many times been recognized. See Sheridan v. Brooklyn City & Newtown R. R. Co., 36 N. Y. 39; Wells v. New York Central & Hudson River R. R. Co., 25 App. Div. 365; Newark & South Orange R. R. Co. v. McCann, 58 N. J. Law, 642; Railway Co. v. Salzman, 52 Ohio St. 558; Conolly v. Railroad Co., 41 La. Ann. 57; Hutchinson on Carriers (3d Ed.) § 992.

4 See Notes, 5 Virginia L. Rev. 506: 18 Michigan L. Rev. 231.

1 Only an extract from the opinion is reprinted.- ED.

CHAPTER XII.

LIMITATION OF COMMON LAW LIABILITY.

HOLLISTER v. NOWLEN.

19 Wend. 234. 1838.1

This was an action against the defendant as a common carrier for the loss of the plaintiff's trunk and contents. A case was agreed on between the parties stating the following facts: The defendant was a member of a company, the proprietors of three daily lines of stage-coaches running between Canandaigua and Buffalo, one of which was called the Telegraph line. The defendant resided at Avon, and with his team and coaches ran that part of the route lying between Avon and Le Roy. East of Canandaigua the line was owned by other proprietors. The plaintiff resided at Utica, and at that place entered as a passenger in the Telegraph line for Buffalo. His baggage consisted of a trunk, containing clothing to the value of $116.75. The fare was duly paid. On the 20th of July, 1833, before daylight in the morning, the plaintiff left Avon in the defendant's coach on his way to Buffalo. The trunk was placed in the boot behind the coach, which was carefully secured by strong leather covering, fastened with strong leather straps, and buckles, and was made secure against any loss except by violence. After proceeding about three miles it was discovered that the straps confining the cover of the boot had been cut, and the plaintiff's trunk with its contents had been feloniously stolen and carried off. There was no negligence on the part of the defendant or his servants in relation to the trunk, further than may be implied from the facts above stated. The plaintiff left the stage, went back to Avon and reported his loss; and the defendant offered a reward, and made all proper efforts for the recovery of the property, but without success.

The Telegraph line was established in 1828. A public notice, that baggage sent or carried in the Telegraph line would be at the risk of the owner thereof, printed on a large sheet, had been uniformly kept placarded in most of the stage offices and public houses from Albany to Buffalo; and particularly such no1 Parts of the opinion are omitted. ED.