"A passenger is a person who undertakes, with consent of the carrier, to travel in the conveyance provided by the latter, otherwise, than in the service of the carrier as such. * * * The question whether one is a passenger or not is one of mixed law and fact; but the law being tolerably clear, it may be said, as a general rule, that the issue upon any conflict of evidence is one for a jury to decide, and not one to be passed upon as a matter of law by the court." 5

A carrier of passengers is bound to receive for carriage all proper persons who desire to become passengers.6 A carrier of passengers may refuse to receive as passengers those coming under the following classes: intoxicated persons,7 persons infected with a contagious disease,8 persons too feeble or infirm to take care of themselves, unless accompanied by a proper attendant,9 persons soliciting business in conflict or competition with the carrier,10 persons to a number beyond the capacity of the facilities of the carrier.11 Persons cannot be discriminated against on account of their color.12

5 Higley vs. Gilmer, 3 Mont., 90, 35 Am. Rep., 450. A passenger has also been defined as a person conveyed for hire from one place to another, Rapalje & Lawr. L. Dict.; one who has taken a place in a public conveyance for the purpose of being transported from one place to another, and has, in the course of the performance of that contract, received under its care either upon the means of conveyance or at the point of departure of that means of conveyance. Black. L. Dict.; Pennsylvania R. Co. vs. Price, 96 Pa. St.. 267; 1 Am. & Eng. R. Cas., 234.

6 Hannibal, etc., R. Co. vs. Swift,

12 Wall. (U. S.), 262; State vs. Chavin, 7 Iowa, 204; Bennett vs. Dutton, 10 N. H., 481.

7 Lemont vs. Washington, etc., R.

Co., 1 Mackey (D. C, 180, 47 Am. Rep., 238: "A railroad company is not bound to receive any person as a passenger who is drunk to such a degree as to be disgusting, offensive, disagreeable, or annoying, and a person so drunk as to be likely to violate the common proprieties, civilities, and decencies of life has no right to a passage while in that condition. The comfort and convenience of passengers generally must be protected, their opinions and feelings regarded, and proper decorum observed; and although in a railroad passenger car neither the highest breeding of the drawing-room nor the fastidious delicacy of the parlor is required, yet the behavior of all persons therein should be becoming to the place and the general character of the passengers." Pittsburg, etc., R. Co. vs. Vandyne, 57 Ind., 576; 26 Am. Rep., 68; 18 Am. Ry. Rep., 454. 8 Thurston vs. Union Pac. R. Co., 4 Dill (U. S.), 321.