In the 1892 case of Cincinnati, Hamilton and Dayton Railroad Company v. McKeen, the U.S Supreme Court ruled in favor of the railroad company. The dispute arose when a passenger named McKeen was injured while riding on one of the company's trains due to alleged negligence by an employee. He sued for damages but his claim was rejected because he had not paid for his ticket at that time which meant he wasn't considered a 'passenger' under Ohio law. The court held that since there was no contractual relationship between McKeen and the railway company (as evidenced by lack of payment), they owed him only a duty of ordinary care - similar to what is owed to any individual who happens to be on their property - rather than higher standard required towards fare-paying passengers.

In the dissenting opinion for Cincinnati, Hamilton and Dayton Railroad Company v. McKeen, Justice Brewer argued that the majority's decision was incorrect in its interpretation of Ohio state law regarding railroad crossings. He contended that under Ohio law, it is not an absolute duty of a driver to stop before crossing a railway track but rather a question of prudence based on circumstances. The majority held the defendant (the railroad company) liable because they believed there was negligence on part of plaintiff’s decedent who did not stop his wagon before attempting to cross the tracks despite being aware about incoming train’s speed and distance from crossing point. However, Justice Brewer disagreed with this view stating that whether stopping or proceeding would be more prudent should have been left as a question for jury instead of court deciding it as matter-of-law issue.