Birmingham Ry., Light & Power Co. v. Sawyer

• Decision Date: 18 June 1908
• Citation: 156 Ala. 199,47 So. 67
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. SAWYER.
• Court: Alabama Supreme Court

47 So. 67

156 Ala. 199

BIRMINGHAM RY., LIGHT & POWER CO. v. SAWYER.

Supreme Court of Alabama

June 18, 1908

Appeal from Circuit Court, Jefferson County; A. A. Coleman, Judge.

Action by W. H. Sawyer against the Birmingham Railway, Light & Power Company. From a judgment for plaintiff, defendant appeals. Reversed.

Tillman Grubb, Bradley & Morrow, for appellant.

Powell & Blackburn, for appellee.

TYSON C.J.

In each of the counts it is alleged that plaintiff was a passenger on defendant's car at the time he was injured.

It is scarcely necessary to say that this is a material allegation and must be proven. If the relation of the parties as that of carrier and passenger was not shown, but that of master and servant, or that of a mere licensee, of course, there could be no recovery in this case. In short, the plaintiff cannot be permitted to allege one relation and prove another. If the plaintiff was riding on the car by virtue of his employment and in that relation to defendant, or if he was accorded the privilege of riding solely on account of his being an employé, it is obvious that the rules of evidence governing the defendant's liability and the measure of damages recoverable would be entirely different from those that would obtain and control in the case of a passenger. If a passenger, as alleged, upon mere proof of the collision and injury, his prima facie right of recovery was established under those counts charging simple negligence. On the other hand, if he was riding as an employé, in addition to showing a collision and injury, he would have to adduce some evidence tending to show negligence, or if as a licensee the only duty defendant owed him was not to wantonly or intentionally injure him, or to exercise due care to avert the injury after his danger became apparent. McCauley v. T. C. I. & R Co., 93 Ala. 356, 9 So. 611. Besides, the degree of care required with respect to plaintiff as passenger and that of an employé would be entirely different. As a passenger the defendant, as a carrier, owed him the highest degree of care; as his employer it only owed him the duty of exercising reasonable care not to injure him. It thus becomes apparent that the question whether or not plaintiff was a passenger is an important one.

Was he a passenger? According to his own testimony, which was in no wise disputed, he was riding as an employé of defendant on the car, going to his work from his home. He was at the time one of the section hands, engaged in putting in crossties on the roadbed of defendant's track. He was furnished a badge by the defendant, which was an insignia of his employment by it, and which entitled him to be carried free upon its cars. He said: "I was riding on my badge the day I got hurt, and did not pay any fare. I was riding as an employé or workman for the company." He also testified "that it was the rule of the company to take the workmen from home to the place they went to work, and to take them back, without charging them any fare, and, I being a workman and having my badge, they carried me without making me pay any fare." On this state of facts, which, as we have said above, are without dispute, we are constrained to hold that plaintiff was not a passenger, but was in the exercise of a mere privilege connected with his employment. Wright v. Railroad, 122 N.C. 852, 29 S.E. 100; 6 Cyc. 543, § 4, and cases cited in note; Elliott on R. R. (2d Ed.) § 1578a: Labatt on Master and Servant, pp. 1825-1829, § 624, (b), (c), and notes; Dresser's Employer's Liability, p. 75, § 13; Roberts & Wallace Duty and Liability of Employers, p. 183.

It is obvious, for another reason, on the facts stated by plaintiff, that there was no contract, either express or implied, that the relation of carrier and passenger should obtain between him and defendant. Indeed, the presumption that such relation existed between them was affirmatively negatived by his testimony. The affirmative charge, requested by defendant, should have been given.

Reversed and remanded.

HARALSON, SIMPSON, and DENSON, JJ., concur.

NOTE.

[a] (U. S. 1900) Plaintiff, being in the employment of defendant, a railroad company, changed to a different employment, still with defendant, and, in connection with the change, stipulated for free transportation to Boston from the city where he was to be employed, not in connection with his work, but for his own convenience. On one of these trips made for his own purposes, and while not at work or going to or from his work, he was injured by the derailing of the car in which he was riding. He was traveling on a pass, similar to others which had been previously issued to him, stamped as an employé's pass, and containing on the back a waiver of all claims against the defendant arising from the negligence of its agents or otherwise. Held, that plaintiff was a passenger, and that an action to recover for the injury was governed by the rules applicable as between carrier and passenger, and not by those applicable as between master and servant, and the stipulations relieving the defendant from liability for negligence will not be enforced against the plaintiff, although he voluntarily assented to them.--Whitney v. New York, N.H. & H. R. Co., 102 F. 850, 43 C. C. A. 19, 50 L. R. A. 615.

[b] (U. S. 1891) Deceased and other employés of defendant railroad company had borrowed a car and engine for their own purposes, by permission of defendant's yard master, and in the negligent management thereof plaintiff's intestate was killed. Held, that the relation of carrier and passenger did not exist, and plaintiff cannot recover.--Davis v. Chicago, St. P., M. & O. R. Co. (C. C.) 45 F. 543.

[c] (Colo. 1894) A section man of a streetcar company, riding on one of its cars by order of his foreman, is not a mere trespasser, though he pay no fare.--Denver & B. P. Rapid Transit Co. v. Dwyer, 20 Colo. 132, 36 P. 1106.

[d] (Ga. 1882) Where an employé of a railroad company, whose duties are not connected with the running of its trains, rides on one of its trains on a free pass, and is injured, the company

is liable to him as to a passenger.--Central R. R. v. Henderson, 69 Ga. 715.

[e] (Ga. 1903) A telegraph lineman, while transported to and from his work by the railroad company by whom he is employed, is a passenger to the extent that the company is bound to exercise extraordinary diligence to keep from injuring

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