Fowler v. Western & Atlantic Railroad , 75 Ga. App. 156 ( 1947 )

1. The admission in evidence of testimony tending to show that the pass held by the plaintiff contained a limitation of liability was not harmful to the plaintiff.

2. The court did not err in refusing to admit in evidence the reports described in division 2.

3. The court erred in admitting in evidence the report described in division 3.

4. Where one employed generally by a railroad is issued trip passes on trains to go to and from work, and who is also permitted to ride without the payment of fare without using his pass, and who is not engaged in or within the scope of his employment while so riding on a train, he occupies the status of a passenger for hire, and the railroad is liable to him for injuries inflicted by its negligence, while he is so riding, and if the injury occurs at a time when the employee is using his pass a limitation therein relieving the railroad from liability on account of its negligence is void.

5. Where the evidence shows injury to one by running of the cars or engine of any railroad company and the evidence for the plaintiff does not relieve the railroad of liability as a matter of law the grant of a nonsuit is error.

DECIDED APRIL 10, 1947. REHEARING DENIED MAY 9, 1947. Thomas Gordon Fowler sued Western Atlantic Railroad for damages for personal injuries. His petition alleged substantially: that on September 25, 1944, and for some time prior thereto, the plaintiff was an employee of the defendant railroad; that the plaintiff was an employee of the defendant railroad; that the plaintiff left his home at Resaca, Georgia, at about 5:10 o'clock in the morning on said date to go to his work, and had gotten aboard a Western Atlantic Railroad passenger train traveling south; that he was an employee of the company and was riding on a pass; that the train became derailed and was wrecked, and injured the plaintiff who was riding in the baggage car; that the defendant was negligent in that said train, without the interference of a third party or outside agency, was caused to leave the tracks on which it was running and was wrecked; in that the right intermediate driving wheel was so worn that it was loosened on its axle before the accident and was loose at the time the accident occurred; in that the driving wheels and driving machinery of said locomotive were generally worn, defective and out of repair, the driving wheels being so worn that the driving rods in operation tended to cause the wheels to wobble and render them likely to spread the rails of the track or jump the rails and cause a derailment; that failure to have said locomotive in repair was a violation of the Federal Safety Appliance Act and constituted negligence as a matter of law; in that the defendant was negligent in that said train was being operated at an excessive rate of speed around a curve, it being operated at the time at a speed of about 55 or 60 miles per hour; that said train was being operated in interstate commerce; that the Nashville. Chattanooga St. Louis Railway Company in operating over the Western Atlantic Railroad becomes by Law in said operation the Western Atlantic Railroad. The defendant denied the material allegations of the petition and alleged that the plaintiff had no right to be riding in the baggage car. The court granted a nonsuit and the plaintiff excepted. The evidence material to a consideration of the questions raised follows: The plaintiff testified that at the time of his injury on September 25, 1944, he was employed by the N.C. St. L. Railway, or the Western Atlantic Railroad, which he knew as the N.C. St. L. Railroad; that he was engaged in working on the Western Atlantic track which extends from Chattanooga to Atlanta; that at the time he was a welder's helper; that he was going to work that day for the N.C. St. L. Railroad; that when he got on the train the conductor told him to sit in the baggage car because the revenue passengers had the seats; that he was in the baggage car when the train was derailed and wrecked and he was injured; that just before the derailment he figured the train must have been running at a speed of between 50 and 60 miles an hour; that when he was a welder he had an annual pass on the railroad; which he used in going "backwards and forwards" to work; that when his rank was reduced to welder's helper his annual pass was taken up and a trip pass given him about the first and fifteenth of every month; that the passes were hardly ever taken up; that the pass he had on this day was a trip pass entitling him to one trip to work and one trip back; that the conductor had not taken it up and it never had been punched; that the conductor recognized him as an employee; that the conductor on this train never had taken up his pass; that he did not have his pass at the trial and did not know what became of it. He testified on cross-examination: that the employees coming to the work on the edge of Atlanta stayed in camp cars and went home for the week end; the employees could not ride on passes on trains No. 90, 91 and 12; that he had been making the trip to and from work whether he had a pass or not; that his work time began when he reported in at the motor car and left the camp car going to a job; that he sometimes went to work on a bus with a fellow employee. Tracy O'Neal testified for the plaintiff that he took pictures of the wrecked train; that there was a small curve in the road and it was just above a bridge north of Marietta. D. V. Hipps testified for the plaintiff that he was Bridge and Building foreman for the N.C. St. L. Railway, that it was the custom of employees with trip passes to continue to hold them until they were taken up or they expired; that if they were not taken up they would ride until they were taken up; the conductor would pass up any employee whom he knew was going to work; if the conductor knew a man was going to work he would pass him up whether he had a pass or not; on the road from Chattanooga to Atlanta the road put cars on for employees on Monday morning going to work in Atlanta; that a trip pass was good for one trip and would be honored whether the employee was going to work or was using it for pleasure; that a trip pass is issued for the convenience of the employee and is no part of the compensation that he draws from the company for his work; that if a man lived in Resaca and worked in Atlanta and had a trip pass he would draw the same pay as another doing the same work and who lived in Atlanta; that he did not have authority to issue trip passes, that they were issued at the Division Engineer's office; that there is a limitation on those passes that provides that the holder releases the company from all liability to the person or property of the user of the pass and that all the passes are alike; that a man living in Resaca and working in Atlanta goes on duty after he gets to Atlanta. E. J. McDevitt testified for the plaintiff: that his occupation is roundhouse foreman, Hill's Park, for the N.C. St. L. Railroad, that the nature of his work is to supervise the maintenance of locomotives; that he remembered the derailment in question; that engine No. 559 was pulling the train; that is a mountain type, a very large locomotive, with eight drivers, two trailers, four engine truck wheels; that the last occasion he had to inspect that locomotive was at least thirty days before the derailment; at that time he found it in good condition; that this engine had undergone classified repairs within sixty days of the derailment; that it received class 5 repair, including turning the driving tires, making the necessary repairs to the boiler and all its appurtenances, valve gear, road bushings, inspecting and rebushing the rods, repairing the spring rigging, engine treads and trailers; that he supervised the repairs; that at the time the condition of the running gear of the locomotive was fair; that they were worn to the extent that they should have been repaired but they were not in violation of the Interstate Commerce Commission rules; that he had made an examination of the locomotive after the derailment, examining only the parts he could see; that he was not able to determine what caused the derailment; that the engine was off the track; that he did not at that time examine the running gear to determine whether it was worn; that he examined it when the engine came back to the shop when the Federal inspectors came about a week later; then he found the engine to be in good condition; that the left intermediate side rod of engine No. 559 was broken approximately two feet from the pain pin, the left intermediate and left back driver were broken off; that when the engine was raised it was found that the right intermediate driving wheel had slipped outwardly two inches, with indications in the key slot of slight turning movement of the wheel; "as to whether it is correct that the driving box lateral was well below the limit from front engine truck wheel lateral below the limit, back engine truck wheel lateral was one inch, yes, sir, that is correct, it was about one inch. As to whether this is right, due to damage to trailer it was impossible to determine the lateral, yes sir. Yes sir, these conditions I was asked about I found there at the time of the examination several days after the derailment;" that he did not know whether any of the broken parts he found was the cause or result of the accident, that in his opinion it was the result. 1. In the course of the cross-examination of the witness, D. V. Hipp, by counsel for the railroad, he testified: "There is a limitation on those passes that provides that a person, the holder of that free pass or free ticket as it is called, releases the company from all liability to the person or property of the person who uses the pass on the train, and they are all alike." The plaintiff objected to the answer and moved to rule it out on the ground (1) the witness had shown by his other testimony that he had never seen all the passes issued and could not have known what they contained; (2) on the ground that the witness had testified that other persons than the witness issued passes and that the plaintiff was not working with the witness at the time of the issuance of the pass and (3) on the ground that if the witness had seen the pass he could not be allowed to testify to what it contained, inasmuch as the pass itself would be the best evidence of what language or printed matter the pass contained and secondary or oral evidence of what it contained was not admissible. In view of our rulings hereinafter the admission of this evidence was harmless.

2. The court refused to admit in evidence the following reports of employees of the N.C. St. L. Railroad, showing the condition of engine No. 559 after inspection and repairs: (1) Dated September 22, 1944; Repairs needed. Engine pounding, riding rough. Signed A. L. Sims, Engineer. The above work has been performed except as noted and the report is approved. Signed Quillen, foreman. (2) Report dated September 23, 1944, showing certain defects and repairs, containing statement, "Engine has bad pound;" (3) Report dated September 24, 1944, showing defects and repairs containing statement, "Engine pounding both sides." The court did not err in refusing to admit these reports in evidence. It could not be ascertained from the reports whether or not the pounding of the engine was evidence of any specific allegation of negligence contained in the petition and there was no other evidence in the case tending to show that the pounding of the engine was relevant on the subject. The reports alone were no more than mere speculation.

3. On the cross-bill, it was error to admit in evidence, for the reason stated in the foregoing division, a report dated September 23, 1944, showing, "12347 both intermediate drivers cutting crown brass; 12019 center pilot brace loose."

4. It appears from the evidence without contradiction that the plaintiff was not engaged in the duties of his employment and within the scope of his employment at the time of his injury. It follows that neither the State nor the Federal Employers' Liability Act is applicable. 45 U.S.C.A., § 51, p. 118; Code, § 66-401; Sassaman v. Pennsylvania Railroad Co., 144 Fed. (2d), 950. The action falls under Code, §§ 18-204 and 94-702 as will be demonstrated, for the reason that the plaintiff was a passenger at the time of his injury. The plaintiff was traveling without the payment of fare and it is immaterial whether he was technically "riding on" a pass or not. In either event he was using the privilege of transportation without the payment of fare in connection with and as an incident to his employment and for the benefit of himself and his employer whether the privilege was expressly a part of the contract of employment or not. It is what occurred that is vital, and not for what particular reason. According to the weight of authority if not the unanimous holdings of the authorities the facts bring the plaintiff into the status of a passenger for hire. Sassaman v. Pennsylvania Railroad Co., supra; McNulty v. Pennsylvania Railroad Co.,182 Pa. 479 (38 A. 524, 38 L.R.A. 524, 61 Am. St. R. 721); Doylev. Fitchburg Railroad Co., 162 Mass. 66 (37 N.E. 770, 25 L.R.A. 157, 44 Am. St. R. 335); and see annotation, 19 L.R.A. (N.S.) 718. The test is whether it can be reasonably inferred that the employment was an inducement for the pass. See the Sassaman case for a history of so-called "free" passes. The facts of this case meet the test. While the texts imply conflicting rules regarding injured "employees" riding without the payment of fare to and from work, the actual authorities show that there are two separate and distinct rules. They are: (1) Where the employee is so riding and is at the time engaged in and within the scope of his employment he is regarded as an employee, and (2) where he is an employee generally but while so riding is not engaged in his duties and not within the scope of his employment he is regarded as a passenger. 10 Am. Jur. § 973, p. 37, 38; 19 L.R.A. (N.S.) 717, 718; 79 Am. St. R. 813; 87 Am. St. R. 283; 13 Ann. Cas. 889, 890; 61 Am. St. R. 725. The rulings to the effect that the employee riding without the payment of fare, to or from work, is a passenger comport with the spirit of the law of this State for the reason that since the Code of 1863, § 2054, Code of 1910, § 2751, it has been the law that: "Railroad companies are common carriers, and liable as such. As such companies necessarily may have many employees who cannot possibly control those who should exercise care and diligence in the running of the trains, such companies shall be liable to such employees as to passengers for injuries arising from the want of such care and diligence." This law has been applied to employees within the scope of their employment while riding on trains.Carswell v. Macon, Dublin Savannah R. Co., 118 Ga. 826 (45 S.E. 695), and cases cited. This section was omitted from the Code of 1933 evidently upon the idea that it was repealed by the act of 1909, Code of 1933, § 66-401. We see no inconsistency between the two laws and no obvious intention on the part of the legislature in adopting the Code of 1933 to change the law. So, whether the plaintiff was riding on his pass or not he was a passenger for hire and if he was riding on a pass and it contained a limitation of liability as to injuries to him such a limitation was void. Code, § 94-702.

If a person travels gratuitously by virtue of the so-called "free" pass and there is sufficient evidence that he had released the company from all liability for injuries to him caused by the company, he would be barred of recovery. Wright v. Central ofGeorgia R. Co., 18 Ga. App. 290 (89 S.E. 457); Holly v.Southern Railway Co., 119 Ga. 767 (47 S.E. 188); Charleston Western Carolina Ry. Co. v. Thompson, 13 Ga. App. 528 (80 S.E. 1097), reversed, 234 U.S. 576 (34 Sup. Ct. 964,58 L. ed. 1476); Lanier v. Bugg, 32 Ga. App. 294 (123 S.E. 145);Brooks v. Bugg, 34 Ga. App. 761 (131 S.E. 365). In those cases, however, the person was in fact traveling gratuitously. In the Wright case the plaintiff was returning to his home from the hospital; in the Holly case the plaintiff was clearly traveling gratuitously and was not an employee of the company; in the Thompson case the wife of an employee was using the pass and as to her the pass was a gratuity; in the Lanier case the plaintiff was traveling for purposes of his own; in the Brooks case the contract between the telegraph company and the railroad provided that the railroad would provide transportation to the employees of the telegraph company "when traveling on the business of the company," and the evidence showed that the plaintiff was traveling on an enterprise of his own. Such circumstances were not present in this case. The evidence shows that the plaintiff was on his way to his work, and whether or not the pass contained a limitation upon the company's liability, the plaintiff's right of recovery is not barred, for where a servant performs all his services at a fixed place, doing no service for the master on the train, he is to be treated as a passenger while the master is carrying him to and from work as a part of his employment. See cases collected in 13 Ann. Cas. 889; and see 19 Yale Law Journal, page 57, where the author stated, "The weight of authority appears to be that an employee of a railroad traveling on a pass to and from work is a passenger," citing Doyle v. Fitchburg R. Co., supra; McNulty v. Pennsylvania R. Co., supra; nor did the passage of the Hepburn Act, 49 U.S.C.A. § 1 (7) alter this rule as to employees by a general prohibition against free passes. For an extensive and scholarly consideration of the very points involved in the instant case, see Sassaman v. Pennsylvania R. Co.

Assuming that the pass here involved is an interstate pass the Federal Courts have held that all passes designated as "free" are not actually gratuitous and that when they are not gratuitous the employee or person riding on one is a passenger. In Charleston Western Carolina Railway Co. v. Thompson, supra, it was held that a pass issued to a member of an employee's family was a gratuity. It was there stated: "the law did not contemplate his work as a conventional inducement for the pass." In Norfolk Southern R. Co. v. Chatman, 244 U.S. 276 (37 Sup. Ct. 499,61 L. ed. 1131, L.R.A. 1917 F, 1128), it was held that a pass to a caretaker of livestock although free to him, was not a gratuity even though it was issued to him under the same kind of exception in the Hepburn Act as applied to an employee, and that the caretaker was a passenger for hire. In Sassaman v. Pennsylvania R. Co., supra, the court applied the rule of the Chatman case to a pass issued to an employee to use in going to or from work and held that the employee was a passenger for hire and that the employer could not limit its liability as against its negligence as to such employee. While there was no evidence in that case that the furnishing of the pass was an express consideration in the contract of employment the court stated: "If, in such circumstances, it was necessary for him, because of the Hepburn Act, to pay his fare in order to preserve his right to reasonably safe conduct by the carrier, it is only reasonable to infer that his additional travel expense would have called for a compensating increase in his wage or the carrier might have been deprived of his services." The testimony of a fellow-employee who did not hire the plaintiff or issue the passes to the effect that the passes were issued solely as a convenience to the employees is a conclusion and does not alter the case. The Sassaman case gives some of the history of the Hepburn Act as showing the intent of Congress but we shall simply make reference to it rather than repeat it here. If the court granted a nonsuit on the ground that the railroad was released from liability it was error for the reasons stated.

5. "In all actions against railroad companies for damages done to persons or property, proof of injury inflicted by the running of locomotives or cars of such companies shall be prima facie evidence of the want of reasonable skill and care on the part of the servants of the companies in reference to such injury." Code, § 94-1108. If the plaintiff introduced no evidence tending to support the allegations of negligence contained in the petition the proof of injury from the operation of the train would be sufficient to carry the case to the jury unless the plaintiff's evidence showed non-liability on the part of the defendant as a matter of law. Western Atlantic Railroad v. Gray, 172 Ga. 286,306 (157 S.E. 482); Savannah Western R. Co. v.Phillips, 90 Ga. 829 (5) (17 S.E. 82); Georgia Power Co. v. Watts, 56 Ga. App. 322 (192 S.E. 493); Parrish v.Southwestern R. Co., 57 Ga. App. 847 (197 S.E. 66);Collier v. Pollard, 60 Ga. App. 105 (2 S.E.2d 821);Pidcock v. Stripling, 66 Ga. App. 692 (19 S.E.2d 178). The evidence in this case does not show that the defendant was not liable as a matter of law and the grant of a nonsuit was error.

The court erred in admitting in evidence the report shown in division 3 of this opinion; and the court erred in granting a nonsuit.

Judgment reversed on main bill and on cross-bill. Sutton, P.J., and Parker, J., concur.