Crider v. Yolande Coal & Coke Co.

• Decision Date: 17 April 1921
• Docket Number: 6 Div. 63
• Citation: 89 So. 285,206 Ala. 71
• Parties: CRIDER v. YOLANDE COAL & COKE CO.
• Court: Alabama Supreme Court

89 So. 285

206 Ala. 71

CRIDER v. YOLANDE COAL & COKE CO.

6 Div. 63

Supreme Court of Alabama

April 17, 1921

Rehearing Denied May 19, 1921

Appeal from Circuit Court, Tuscaloosa County; Henry B. Foster Judge.

Action by De Witt Crider, by next friend, against the Yolande Coal &amp Coke Company, for damages for personal injuries, having been thrown from a truck operated by defendant. Judgment for defendant, and plaintiff appeals. Affirmed.

Mathews & Mathews, of Bessemer, and Brown & Ward, of Tuscaloosa, for appellant.

Foster Verner & Rice, of Tuscaloosa, for appellee.

SAYRE J.

Defendant, appellee, owned and operated two coal mines, separated by some distance, and a large automobile truck which passed back and forth between the two. The road between the two mines passed through the village of Abernant, where it crossed a railroad, turning first sharply to the track, and then again, after crossing, sharply into the general direction of the track. Defendant's truck was not equipped to carry passengers, nor was it operated for that purpose. The driver, however, was in the habit of picking up any one who happened to be going in the same direction, chiefly employés of defendant, and others who worked in and about its mines, and the evidence afforded an inference, it may be conceded, that defendant's superintendent was aware of this practice. On the occasion in question the truck, shortly before reaching the railroad, slowed up to allow some one to alight, when several young men got aboard, plaintiff, 20 years of age, among them. It may be stated--though not conceived to be of legal consequence--that these young men were allowed to get aboard the truck in pursuance of the general practice and without regard to the presence, desire, or convenience of plaintiff in particular. No charge was made for the accommodation thus extended. Plaintiff stood upon the floor of the truck, leaning with his back against the cab or hood over the driver's seat, one arm resting on its top. After the truck had crossed the railroad, and was about to turn again, though moving, as plaintiff testified, at the rate of 20 or 25 miles an hour, an automobile in the rear signaled for room to pass, whereupon the driver of the truck steered 2 or 3 feet to the right, and just at the turn--to use plaintiff's language--"hit a hole." Plaintiff testified:

"It was just a rut washed out in the side of the road; could not say how deep it was--something like a foot--on the right side of the road."

As a result plaintiff lost his balance and fell from his place on the truck, the rear wheel of which ran over his leg, inflicting grievous injury. Plaintiff was not defendant's employé. Plaintiff was employed as a miner by an independent contractor in one of defendant's mines, and was not in any other wise related to defendant or its business.

Evidence was taken on several counts and at the end of it the trial court gave the general charge as requested by defendant. This charge was correctly given as far as it concerns counts 1 and 2, in which plaintiff declared as an employé. Plaintiff, as we have said, was not an employé of defendant.

In counts A, B, C, and D plaintiff declared as a passenger. A passenger, for the purpose of this case, may be defined as one who, by virtue of a contract, express or implied, puts himself in the care of the carrier, and is accepted by the carrier, for transportation from place to place. Out of the relation the duty arises on the part of the carrier to transport the passenger. 3 Words and Phrases, Second Series 904. Plaintiff, having availed himself of transportation by means of defendant's truck in the circumstances stated, was not a passenger. He was at best...