Chattanooga Rapid-Transit Co. v. Venable

• Decision Date: 13 October 1900
• Parties: CHATTANOOGA RAPID-TRANSIT CO. v. VENABLE.
• Court: Tennessee Supreme Court

58 S.W. 861

105 Tenn. 460

CHATTANOOGA RAPID-TRANSIT CO. v. VENABLE.

Supreme Court of Tennessee.

October 13, 1900

Appeal from circuit court, Hamilton county; Floyd Estell, Judge.

Action by George E. Venable against the Chattanooga Rapid-Transit Company and the Chattanooga, Rome & Southern Railway Company for injuries. From a judgment for the plaintiff against both defendants, the transit company appeals. Affirmed.

W. T Murray, for appellant.

Pritchard & Sizer, for appellee.

BEARD J.

The defendant in error, at the time of the injury he complains of in this action, was in the service of the plaintiff in error. His chief duty was that of night watchman at the company's depot in Chattanooga. Coupled with this however, during his watch he was required to stand at the gate which shut off the railroad tracks from the station, and examine the tickets of parties seeking, and direct them to its trains. On account of a slight injury previously received, he had laid off from service for a few days. About 8:30 o'clock of the morning of the day of the accident in question in this case he boarded one of the trains of the plaintiff in error at a point near his home, a short distance outside of Chattanooga, to ride to the station or depot of his employer, to report his readiness to return to duty the coming night. Just before reaching his destination the train on which he was riding had a head-end collision with a train of the Chattanooga, Rome & Southern Railway Company, which under a contract with the plaintiff in error, had the right to use its tracks at intervals. The injury for which the defendant sues resulted from this collision. Both companies were defendants in this action, and there was a verdict against both. A new trial was granted the Chattanooga, Rome & Southern Railway Company, and disallowed as to the Chattanooga Rapid-Transit Company, and the case is before us on its appeal in error.

The declaration alleged negligence on the part of the two railway companies, but there was no evidence to sustain the averment. The case was rested, by the plaintiff below, on the proof of the accident, the resulting injury, and a presumption of negligence arising from the accident. The chief controversy in the case was as to the status of the defendant in error at the time of the accident, or, rather, as to the relation he then sustained to the plaintiff in error. The insistence of the rapid-transit company was that Venable was an employé of the company, riding on one of its trains, in full knowledge of the fact that he was violating one of its rules, which forbade any one to ride without the payment of fare or a pass from a superior officer, and in doing so he was a trespasser, to whom no duty was owed save not to inflict upon him wanton injury. On the other hand, the contention of the defendant in error was that he was a passenger, entitled to all the protection which the law attaches to the passenger relation. On this point the testimony of the plaintiff below was that ever since his employment by the company he had ridden on its trains to and from his work without a pass or the payment of fare, and his right to do so had never been questioned by any of the conductors or other officers of the company, and that he had never heard of any rule requiring an employé to exhibit a pass or pay fare in order to ride. On the other hand, the conductor of the train testified there was a rule of the company posted in conspicuous places by which conductors were forbidden to permit parties to ride without a pass or the payment of fare, save employés of the company going to or returning from their work, and that he had called the attention of Venable to this rule more than once, and had said to him on such occasions that he must either pay his fare or get a pass. He admitted, however, that he had never enforced this rule against him or any other employé of the company, and that on the morning of the accident, and a little while before it occurred, he saw Venable on the train, but did not demand fare from him. On the point raised by this testimony of the conductor, the trial judge said to the jury that "if the plaintiff had been notified that he would not be allowed to ride on its trains by virtue of his position as an employé of the road, and had been notified that he could not ride on its trains without a pass or the payment of fare, and he was undertaking to ride, at the time he claims to have been injured, without a pass or the payment of fare, and if there is nothing in the evidence to show he was on the train by the consent or permission of the conductor, he would not be entitled to recover." Again, putting his view of the law on this subject, so as to save all misapprehension on the part of the jury, he says: "If the proof shows that the plaintiff was on the defendant's [rapid-transit company's] train with the knowledge or by the consent of the conductor, then he occupied the position of a stranger, and not that of an employé to the defendant company, and it would owe him the same duty that a common carrier owes a passenger for hire. *** And if he was on the train under that state of facts, and the proof shows there was a head-end collision, *** the law would presume that there was negligence on the part of the defendant the rapid-transit company, and your verdict should be for the plaintiff, provided he was injured."

It is insisted that there is error in this charge of the court. A railroad company, beyond question, has the right to make and enforce reasonable rules for the control of its trains and persons thereon, not only to provide for the security of its passengers and employés (Railroad Co. v. Wilson, 88 Tenn. 306, 12 S.W....