Forster v. Southern Ry. Co, (No. 19066.)

• Decision Date: 22 January 1929
• Docket Number: (No. 19066.)
• Citation: 146 S.E. 516,39 Ga.App. 216
• Parties: FORSTER . v. SOUTHERN RY. CO.
• Court: Georgia Court of Appeals

39 Ga.App. 216

146 S.E. 516

FORSTER .

v.SOUTHERN RY. CO.

(No. 19066.)

Court of Appeals of Georgia, Division No. 2.

Jan. 22, 1929.

(Syllabus by Editorial Staff.)

Error from City Court of Polk County; John L. Tison, Judge.

Action by W. L. Forster, administrator, against the Southern Railway Company. Judgment for defendant, and plaintiff brings error. Reversed.

Porter & Mebane, of Rome, for plaintiff in error.

W. H. Trawlck and C. C. Bunn, both of Cedartown, and Maddox, Matthews & Owens, of Rome, for defendant in error.

Syllabus Opinion by the Court.

JENKINS, P. J. [1] 1. A railroad company cannot be held liable for an injury received by a passenger while being transported over the company's lines by virtue of a gratuitous pass which provides that the passenger assumes "all risk of personal injury and of loss of or damages to property from whatever causes arising, " unless the injury was inflicted willfully and wantonly. Lanier v. Bugg, 32 Ga. App. 294 (1), 123 S. E. 145.

2. To authorize a recovery against a railroad company for injuries to a person received while riding on such a free pass, the plaintiff should allege and show that the conduct of the defendant was "such as to evince a willful intention to inflict the injury, or else was so reckless or so charged with indifference to the consequences, where human life or limb was involved, as to justify the jury in finding a wantonness equivalent in spirit to actual intent." Central of Ga. R. Co. v. Moore, 5 Ga. App. 562 (1), 565, 63 S. E. 642; Southern Ry. Co. v. Davis, 132 Ga. 812, 816, 65 S. E. 131; Harris v. Reid, 30 Ga. App. 187 (2), 117 S. E. 256.

3. In the instant case, the petition as amended alleged that the plaintiff was on board a north-bound passenger train, riding on a free pass; that orders had been given the engineer in charge of the train to go into a siding at a designated station to permit a south-bound passenger train to pass, and that orders had been given the engineer in charge of the south-bound train to keep to the main line at that station; that the engineer of each train had been apprised of the orders given to the other; that the engineer of the north-bound train, as it approached the station, thus knew that the south-bound train was on the main line at the station; and that in violation of his expressed orders, and while conscious of his actions, and without having overlooked or misinterpreted his orders, he willfully ran the north-bound train, traveling at a high rate of speed, over...