Fowler v. Western & A. R. R.
| Decision Date | 10 April 1947 |
| Docket Number | 31516,31528. |
| Citation | 42 S.E.2d 499,75 Ga.App. 156 |
| Court | Georgia Court of Appeals |
| Parties | FOWLER v. WESTERN & A. R. R. WESTERN & A. R. R. v. FOWLER. |
Rehearing Denied May 9, 1947.
Syllabus by the Court.
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.
Thomas Gordon Fowler sued the 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 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 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, 45 U.S. C.A. § 1 et seq., 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 derailed, wrecked and injured him; 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 weekend; 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 employees up whom he knew if he 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 employed was going to work or was using it for pleasure; that a trip pass is issued for the convenience of the employees 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 I 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 approximatey two feet from the main 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; ; 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.
Arnold Gambrell & Arnold and Hal Lindsay, all of Atlanta, and J. G. Roberts, of Marietta, for plaintiff.
Sam J. Welsch, of Marietta, and Walton Whitwell, of Nashville Tenn., for def...
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