Mr. Justice Cartwright
delivered the opinion of the court:
Appellee" brought this suit as administrator of the estate of George M. Jennings, who was killed by one of appellant’s trains while crossing its tracks at Seventy-sixth street, in the city of Chicago, to recover damages from appellant for his death.
The declaration contains five counts, in each of which it is averred that the defendant received said George M. Jennings upon its premises as a passenger at or upon the intersection and crossing of its railroad and Seventy-sixth street, and near to its Seventy-sixth street depot, to be safely carried from thence to its Dearborn street station, in the city of Chicago, upon a train about to arrive at and stop and wait at said Seventy-sixth street station or depot to receive said George M. Jennings and other passengers, to convey and carry them to their several destinations. Each of said counts also alleges, in substance, that it thereupon became the duty of defendant to have permitted the said George M. Jennings to safely cross over its railroad tracks while going to said depot, and to have allowed and permitted him to safely take and mount said train of cars which was about to arrive and stop at said station and to have carefully conveyed and carried him to his said destination, but that while he was, with all due care and diligence, walking upon and across said Seventy-sixth street at said crossing of the same and defendant’s railroad to reach and mount defendant’s train, the defendant, by its servants, disregarding said duty, ran another train in a southerly direction upon and over the said crossing, and struck the said George M. Jennings and killed him. While the counts are substantially alike in making the foregoing allegations, they differ in respect to the character of the negligence charged as a breach of said duty. In the first, there is a general charge that the train which struck Jennings was carelessly, negligently and improperly driven, managed and run. The second fcount charges that said train was carelessly and negligently driven and run' at an unlawful rate of speed, in violation of an ordinance of the city of Chicago set out in that count. The third alleges that the defendant ran the train, without maintaining a flagman upon the street crossing to warn said George M. Jennings of trains. The fourth charged defendant with not ringing" the bell or blowing a whistle on the engine eighty rods from the crossing and until the crossing was reached, as was required by the statute. The fifth alleges that defendant failed to ring a bell in its tower or tower-house near the crossing, to warn said George M. Jennings of the approach of the train. Each count was based upon the existence of the contract relation of passenger and carrier, and alleged duties arising out of that relation, and charged as breaches of that duty the several acts above stated. There was no count alleging any relation or duty except as carrier and passenger, nor any negligent act except as a breach of such duty, and there was no count of which the averment of that relation was not a necessary element. The defendant pleaded the general issue, and there was a trial ’ resulting in a verdict for $4800, and a judgment thereon, which has been affirmed by the Appellate Court.
The following facts were proved by the plaintiff and not disputed by the defendant, but are conceded: The defendant owns and operates a railroad in the city of Chicago, with a station at the corner of Polk and Dear-born streets. It also has a station at Seventy-sixth street. That street runs east and west and the tracks run north and south, crossing it at right angles. At that place there are four tracks, and the depot is on the east side of them and north of the street. The two easterly tracks nearest the depot are used for passenger trains. The first track to the east is No. 1, and the trains running on that track are north-bound passenger trains. The second track from the east is No. 2, on which south-bound passenger trains run. The two tracks to the west of these are for north and south-bound freight trains. There is a sidewalk running east and west on the north side of Seventy-sixth street, and east of all the tracks there is a wooden platform running north from the sidewalk about one hundred feet. At the north end the platform is ten feet wide, and at the south end it runs over to the depot and is probably eighteen feet wide. Between the passenger tracks Nos. 1 and 2 there is another platform eight feet wide, running north from the sidewalk one hundred feet. These platforms are level and even with the top of the rails, and are for the use of passengers. The street crossing is planked in the usual manner entirely across the tracks. In 1894 there was a train which went north from this station at 7:37 in the morning, and George M. Jennings was in the habit of taking that train, and other passengers were in the habit of taking trains at that station for down town every morning. On the morning of April 16, 1894, Mr. Jennings walked across lots from his home west of the railroad to take this train. He came to the Seventy-sixth street crossing and walked along the sidewalk over the freight car tracks. The train going north which he intended to take was on the farther track, just drawing up to the station, and was entirely stopped or was in the act of "stopping. He was looking to the east or south-east toward that train and away from a passenger train which was approaching from the north on track No. 2. As he reached track No. 2, on which the South-bound passenger train was coming, and had stepped one foot over the west rail, he was struck by that train and killed. He had not reached any platform provided for passengers, or a point where such platform connected with the sidewalk that he was on, or any place where passengers were accustomed to get upon the train. He had a commutation ticket in his pocket, which was still good for one ride.
The charges of negligence and the allegation of due care on the part of Jennings were in controversy at .the trial, but the bill of exceptions shows that the principal dispute was as to whether Jennings had become a passenger on defendant’s railroad. On that question the defendant asked the court to give to the jury five instructions as to what facts were necessary to prove the averment that Jennings was a passenger, and four of them required proof of that averment to authorize a recovery under the declaration. The general purport of these instructions was that Jennings would not become a passenger or be received by the defendant as a passenger until he should have reached the station or platform for the purpose of taking such train or the point where passengers were in the habit of getting on such train; and the fifth was as follows:
“The plaintiff in this case has alleged in his declaration that Jennings was received by the defendant as a passenger, and in order to recover under this declaration the plaintiff must prove, by a preponderance of the evidence, that the relation of passenger and carrier existed between Jennings and the defendant when he was struck by the defendant’s engine.
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Mr. Justice Cartwright
delivered the opinion of the court:
Appellee" brought this suit as administrator of the estate of George M. Jennings, who was killed by one of appellant’s trains while crossing its tracks at Seventy-sixth street, in the city of Chicago, to recover damages from appellant for his death.
The declaration contains five counts, in each of which it is averred that the defendant received said George M. Jennings upon its premises as a passenger at or upon the intersection and crossing of its railroad and Seventy-sixth street, and near to its Seventy-sixth street depot, to be safely carried from thence to its Dearborn street station, in the city of Chicago, upon a train about to arrive at and stop and wait at said Seventy-sixth street station or depot to receive said George M. Jennings and other passengers, to convey and carry them to their several destinations. Each of said counts also alleges, in substance, that it thereupon became the duty of defendant to have permitted the said George M. Jennings to safely cross over its railroad tracks while going to said depot, and to have allowed and permitted him to safely take and mount said train of cars which was about to arrive and stop at said station and to have carefully conveyed and carried him to his said destination, but that while he was, with all due care and diligence, walking upon and across said Seventy-sixth street at said crossing of the same and defendant’s railroad to reach and mount defendant’s train, the defendant, by its servants, disregarding said duty, ran another train in a southerly direction upon and over the said crossing, and struck the said George M. Jennings and killed him. While the counts are substantially alike in making the foregoing allegations, they differ in respect to the character of the negligence charged as a breach of said duty. In the first, there is a general charge that the train which struck Jennings was carelessly, negligently and improperly driven, managed and run. The second fcount charges that said train was carelessly and negligently driven and run' at an unlawful rate of speed, in violation of an ordinance of the city of Chicago set out in that count. The third alleges that the defendant ran the train, without maintaining a flagman upon the street crossing to warn said George M. Jennings of trains. The fourth charged defendant with not ringing" the bell or blowing a whistle on the engine eighty rods from the crossing and until the crossing was reached, as was required by the statute. The fifth alleges that defendant failed to ring a bell in its tower or tower-house near the crossing, to warn said George M. Jennings of the approach of the train. Each count was based upon the existence of the contract relation of passenger and carrier, and alleged duties arising out of that relation, and charged as breaches of that duty the several acts above stated. There was no count alleging any relation or duty except as carrier and passenger, nor any negligent act except as a breach of such duty, and there was no count of which the averment of that relation was not a necessary element. The defendant pleaded the general issue, and there was a trial ’ resulting in a verdict for $4800, and a judgment thereon, which has been affirmed by the Appellate Court.
The following facts were proved by the plaintiff and not disputed by the defendant, but are conceded: The defendant owns and operates a railroad in the city of Chicago, with a station at the corner of Polk and Dear-born streets. It also has a station at Seventy-sixth street. That street runs east and west and the tracks run north and south, crossing it at right angles. At that place there are four tracks, and the depot is on the east side of them and north of the street. The two easterly tracks nearest the depot are used for passenger trains. The first track to the east is No. 1, and the trains running on that track are north-bound passenger trains. The second track from the east is No. 2, on which south-bound passenger trains run. The two tracks to the west of these are for north and south-bound freight trains. There is a sidewalk running east and west on the north side of Seventy-sixth street, and east of all the tracks there is a wooden platform running north from the sidewalk about one hundred feet. At the north end the platform is ten feet wide, and at the south end it runs over to the depot and is probably eighteen feet wide. Between the passenger tracks Nos. 1 and 2 there is another platform eight feet wide, running north from the sidewalk one hundred feet. These platforms are level and even with the top of the rails, and are for the use of passengers. The street crossing is planked in the usual manner entirely across the tracks. In 1894 there was a train which went north from this station at 7:37 in the morning, and George M. Jennings was in the habit of taking that train, and other passengers were in the habit of taking trains at that station for down town every morning. On the morning of April 16, 1894, Mr. Jennings walked across lots from his home west of the railroad to take this train. He came to the Seventy-sixth street crossing and walked along the sidewalk over the freight car tracks. The train going north which he intended to take was on the farther track, just drawing up to the station, and was entirely stopped or was in the act of "stopping. He was looking to the east or south-east toward that train and away from a passenger train which was approaching from the north on track No. 2. As he reached track No. 2, on which the South-bound passenger train was coming, and had stepped one foot over the west rail, he was struck by that train and killed. He had not reached any platform provided for passengers, or a point where such platform connected with the sidewalk that he was on, or any place where passengers were accustomed to get upon the train. He had a commutation ticket in his pocket, which was still good for one ride.
The charges of negligence and the allegation of due care on the part of Jennings were in controversy at .the trial, but the bill of exceptions shows that the principal dispute was as to whether Jennings had become a passenger on defendant’s railroad. On that question the defendant asked the court to give to the jury five instructions as to what facts were necessary to prove the averment that Jennings was a passenger, and four of them required proof of that averment to authorize a recovery under the declaration. The general purport of these instructions was that Jennings would not become a passenger or be received by the defendant as a passenger until he should have reached the station or platform for the purpose of taking such train or the point where passengers were in the habit of getting on such train; and the fifth was as follows:
“The plaintiff in this case has alleged in his declaration that Jennings was received by the defendant as a passenger, and in order to recover under this declaration the plaintiff must prove, by a preponderance of the evidence, that the relation of passenger and carrier existed between Jennings and the defendant when he was struck by the defendant’s engine. As a matter of law, the court instructs the jury that a person does not become a passenger until he has in some way placed himself under the care and control of the carrier and has been expressly or impliedly received as a passenger by the carrier, and that the fact, if it be a-fact, that Jennings was on his way to defendant’s station for the purpose and with the intention of taking the defendant’s train into «the city is not sufficient to make him a passenger and create the relation of passenger towards the defendant, and that relation would not commence and he would not be received as a passenger until he should reach the defendant’s station or platform or point where he intended to take its train.”
The court refused to give any of these instructions, and did not give any which covered the same ground, or give the jury any information as to what proof was required to sustain the averment that Jennings had become a passenger. The jury were left without any guide as to the law on that subject.
What facts will create the contract relation of carrier and passenger is a question of law, and when the existence of such relation is in controversy, it is the duty of the court to give a proper instruction presented by a party, informing the jury what facts will be sufficient evidence of the contract. Peculiar duties and liabilities on the part of the carrier arise out of and are based on the existence of such contract. There is a wide difference between the liability of a railroad company to persons on street crossings or on its premises who are not passengers and its liability to its passengers. A railroad company owes to its passenger the highest practicable degree of care in transporting him and in the management and operation of its trains, and slight negligence is such a breach of that duty as will render it liable. If Jennings was a passenger the defendant owed to him the highest degree of care and prudence to carry'him to his destination, to protect him from injuries from its servants and trains, and to afford him a reasonable opportunity to leave the train with safety. (Pennsylvania Co. v. McCaffrey, 173 Ill. 169.) The responsibility for this degree of care and the liability for a failure to exercise it begin when the contract relation begins. It is not necessary, to create the relation, that the passenger should have entered a train, but if he is at the place provided for passengers, such as the waiting room or platform at the station, with the intention of taking passage and has a ticket, he is entitled to all the rights and privileges of a passenger. A railroad company owes a general duty to receive and carry those who present themselves at the time and place provided for passengers requiring transportation. In Chicago and Alton Railroad Co. v. Wilson, 63 Ill. 167, Wilson, after purchasing a ticket for a train, was standing on a platform constructed by the railroad company for the convenience of passengers between the main track and a switch track. He was waiting for the passengers to alight from the train upon which he expected to take passage, when he was struck and injured by another train. The court regarded him as a passenger and held the company liable for the character of the platform. In North Chicago Street Railroad Co. v. Williams, 140 Ill. 275, it was held that the contract constituting the relation of carrier and passenger might be implied from the attempt of Williams to enter, in a proper manner, a street car as a passenger, with the intention of being transported thereon.
When the passenger has presented himself at the proper place to be transported, his right to care and protection begins. (Cooley on Torts, 653.) But it is uniformly held that the passenger must have placed himself under the care of the railroad company, so that the circumstances will warrant an understanding on the part of the company that he is a passenger and under its care as such. Although it is not necessary that fare should have been paid or an express contract made, it is necessary that a person should be under the control of a carrier in order to be entitled to its care as a passenger. (2 Wood on Railway Law, 1037.) He must be at some place under the control of the carrier and provided for passengers, so that it may exercise the high degree of care exacted from it; and the mere fact that an intending passenger has a ticket and intends to take a train does not create the relation of carrier and passenger. In 5 Am. & Eng. Ency. of Law, (2d ed.) 488, the time when that relation begins is stated as follows: “The relation of carrier and passenger begins when one puts himself in the care of the carrier or directly within its control with the bona fide intention of becoming a passenger and is accepted as such by the carrier. Seldom, however, is there any formal act of delivery of the passenger’s person into the care of the carrier or of acceptance by the carrier of one who presents himself for transportation, hence the existence of the relation is commonly to be implied from the circumstances attendant. The rule is, that these circumstances must be such as will warrant an implication that one has offered himself to be carried, and that the offer has been accepted by the carrier.”
In Elliott on Railroads (sec. 1579) it is said: “A person may become a passenger before he has entered the train or vehicle of the carrier. We think it safe to say that a person becomes a passenger when, intending to take passage, he enters a place provided for the reception of passengers, as a depot, waiting room or the like, at a time when such a place is open for the reception of persons intending to take passage on the trains of the company.” In section 1581 the author says: “The relation cannot exist unless the person claiming to be a passenger has been impliedly or expressly received as such by the carrier.”
In June v. Boston, etc. Railroad Co. 153 Mass. 79, a person was walking toward the station on a plank walk on the premises of the railroad company, intending to take a train, and was struck by another train. The court held that he was not a passenger, and said that argument was not necessary to show that a man walking toward a railroad station with the intention of buying a ticket and taking a train after he got there was not a passenger, even if he might be in the same place if he had begun his journey. If the relation has never been entered into, the question is not the same as where a passenger may rightfully be without ceasing to be a passenger after the relation has been assumed.
In Webster v. Fitchburg Railroad Co. 161 Mass. 298, plaintiff alleged that her intestate was a passenger on defendant’s railroad. The evidence was that he had in his pocket a ten-trip ticket between Boston and the station where the accident happened. He was running from the street across the company’s tracks on its premises to catch a train about to start, when he was struck and killed by another train. The court held that he had not become a passenger, and said: “One becomes a passenger on a railroad when he puts himself into the care of the railroad company, to be transported under a contract, and is received and accepted as a passenger by the company. There is hardly ever any formal act of delivery of one’s person into the care of the carrier or of acceptance by the carrier of one who presents himself for transportation, and so the existence of the relation of passenger and carrier is commonly to be implied from circumstances. These circumstances must be such as to warrant an implication that the one has offered himself to be carried on a trip about to be made, and that the other has accepted his offer and has received him to be properly cared for until the trip is begun, and then to be carried over the railroad.”
In Illinois Central Railroad Co. v. O'Keefe, 168 Ill. 115, plaintiff’s intestate got. upon the train after it had left the station and platform and at a place not provided for passengers. We held, in accordance with the authorities, that a passenger must put himself in the care of the railroad company, and there must be something from which it may fairly be implied that the company had accepted him as a passenger.
Since a railroad company owes the duty of protection to its passengers, it seems plain that the circumstances must be such that the company will understand that such a person is a passenger in its care and entitled to its protection. The company certainly has a right to know that the relation and duty exist, and the passenger must be at some place provided by the company for passengers, or some place occupied or used by them in waiting for or getting on or off trains. Whenever a person goes into such a place with the intention of taking passage, he may fairly expect that the company will understand that he is a passenger and protect him. If he could be a passenger before reaching such a place there would be no limit or place where it could be said that he became a passenger. The intention of taking a train would only prove a purpose to enter into' the contract relation, but would not create it. Any person walking toward a train on a public sidewalk might have no intention whatever of taking the train but might have an intention to keep on along the street. So long as a person merely intends to be carried but has not reached any place provided for passengers or used for their accommodation he is not a passenger. Counsel for appellee have not found any authority holding differently from those above cited, and all the authorities seem to be in accord on the question.
Appellee, however, insists that even if the relation of passenger and carrier alleged in the declaration was not proved, it was not so material as to require absolute proof; that the evidence justified a finding that defendant was guilty of negligence in failing to observe its common law duty of ordinary care not to injure a person on a street crossing-; that it failed to exercise such ordinary care as it would owe to Jennings if he was not a passenger, and that it could not have been harmed by the refusal of the instructions. Even if it were true that a recovery might be had, under the declaration, by proof of a different relation and duty from those alleged in the declaration, it would not justify the refusal of the court to inform the jury what would create the relation of carrier and passenger and impose upon the defendant the highest degree of care and diligence for the safety of Jennings. The third instruction refused was of that character. If that were the case, the rights and duties of the parties would be presented to the jury in two aspects, with different duties and liabilities. If Jennings was not a passenger and his rights grew out of the fact that he was crossing a street at an intersection of defendant’s railroad the defendant would be bound to exercise toward him ordinary care, while if he was a passenger it would owe him tire highest degree of care. The jury would be called upon to determine the liability of the defendant upon entirely different grounds, and might conclude that the defendant exercised ordinary care but not the highest degree of care. The rule, however,' is fundamental that a plaintiff must recover, if at all, upon the case made by his declaration, (Chicago and Eastern Illinois Railroad Co. v. Driscoll, 176 Ill. 330,) and under the declaration the allegation in question was'a material one. There was no count upon the common law duty of a railroad company arising out of its relations to a person crossing a street over its tracks or resting on a relation of that kind. Every count was based on the contract relation, and plaintiff was bound to prove it. The defendant did not, in any manner, waive its rights in that respect or fail to opportunely object to a variance. The objection was continually made in the course of the trial, as appears from the bill of exceptions. Evidence as to ■ the use of the platform between the two tracks and the possession of the commutation ticket by Jenning's was objected to as an attempt to make a different case, and because the evidence already showed that he was not a passenger. The defendant also moved to direct a verdict for it because there was no proof that Jenning's was a passenger or had been received as such, and that the proof was at variance with the declaration. The objection of variance was never waived, but was insisted upon throug'b - out the trial and by asking the instructions in question. The court need not have given all of the five instructions, as they were mainly repetitions of the same rule, but it was harmful error to refuse to give any of them.
The judgments oE the circuit court and Appellate Court are reversed and the cause is remanded to the circuit court.
Reversed and remanded.