Central of Georgia Ry. Co. v. Mullins

• Decision Date: 10 February 1910
• Docket Number: 2,053.
• Parties: CENTRAL OF GEORGIA RY. CO. v. MULLINS.
• Court: Georgia Court of Appeals

66 S.E. 1028

7 Ga.App. 381

CENTRAL OF GEORGIA RY. CO. v. MULLINS.

No. 2,053.

Court of Appeals of Georgia

February 10, 1910

Syllabus by the Court.

One who, without any employment whatever, but at the request of a servant who has no authority to employ other servants voluntarily undertakes to perform services for a master, is a mere volunteer, and the master does not owe him any duty except the same duty he owes to a trespasser; that is, not to injure him willfully or wantonly after his peril is discovered.

Where a volunteer goes across the tracks of a railroad company into its yard for the purpose of performing a voluntary service he is required, in the exercise of ordinary care, to use his senses in ascertaining whether there is any danger at that particular time in going into that particular place; and if he goes into the yard when the yard is being used by the railroad company, and attempts to cross a track immediately in front of a rapidly approaching train, and, while crossing is struck by the train, he is guilty of such contributory negligence as would preclude a recovery from the railroad company for injuries thus sustained, unless it be established that the injuries were caused by the willful and wanton act of the company.

Error from City Court of Greenville; H. H. Reville, Judge.

Action by Anna Mullins against the Central of Georgia Railway Company. Judgment for plaintiff, and defendant brings error. Reversed.

C. E Battle, McLaughlin & Jones, and Howell Hollis, for plaintiff in error.

T. U. Garrard, W. C. Neill, W. R. Jones, and N. F. Culpepper, for defendant in error.

HILL, C.J. (after stating the facts as above).

1. From the substantially uncontradicted facts several propositions are clearly deducible: (1) That the deceased, when killed, was acting solely as a volunteer; (2) that he was not using or attempting to use the pathway across the tracks for the purpose of crossing, at the time of the homicide, as the tracks at that place were then being actually used by the railway company, and the pathway was blocked by its freight train; (3) that the deceased was guilty of contributory negligence in attempting to cross the track immediately in front of the rapidly approaching passenger train. That the deceased was a volunteer cannot be questioned, under the facts and the repeated rulings of the Supreme Court of this state. "One who, without any employment whatever, or at the request of a servant who has no authority to employ other servants, voluntarily undertakes to perform services for a master, is a mere volunteer." Here the engineer of the freight train, without any authority from the master, requested the deceased to convey a message for him to his fireman, and the deceased voluntarily did as he was directed. The only duty, therefore, which the railway company owed to the deceased at the time of the killing, was the same duty which it owed to a trespasser, which was not to willfully and wantonly injure him after he was seen in a position of peril. Atlanta & West Point R. Co. v. West, 121 Ga. 644, 49 S.E. 711, 67 L.R.A. 701, 104 Am.St.Rep. 179. As stated by the Supreme Court in that case: "The defendant does not, as master, owe to a volunteer any duty whatever. The obligations of master and servant do not arise between them. The defendant is only bound not to injure the volunteer willfully, and to use care not to injure him after notice of his peril."

2. As to the second proposition the evidence is equally clear. Even assuming that the place where the deceased was killed was a pathway across the tracks of the railroad, much frequented by the public with the permission or acquiescence of the railway company, there are two reasons why this fact would not be of any advantage to the plaintiff: He was not attempting to cross the track by right of any license he had, actually or constructively, from the railway company. He was crossing at that place, not for the purpose of getting across the tracks in pursuance of any license to do so from the railroad, but simply for the purpose of delivering a volunteer message to an employé of the railway company, who was on an engine attached to a freight train which was...