Gregory v. Georgia Granite R. Co.

• Decision Date: 13 May 1909
• Citation: 64 S.E. 686,132 Ga. 587
• Parties: GREGORY v. GEORGIA GRANITE R. CO.
• Court: Georgia Supreme Court

64 S.E. 686

132 Ga. 587

GREGORY v. GEORGIA GRANITE R. CO.

Supreme Court of Georgia

May 13, 1909

Syllabus by the Court.

In accepting a charter from the state containing a grant of rights and franchises, a railroad company impliedly assumes the duty of public carrier, and cannot divest itself of its public duties nor shirk its liabilities by allowing another corporation, without legislative authority, to take possession of its track and operate cars thereon.

[Ed Note.-For other cases, see Railroads, Cent. Dig. §§ 817-823; Dec. Dig. § 260. ^[*]]

Where a railroad company without legislative authority permits another corporation to exercise the franchise of running cars drawn by steam over its track, the company owning the road is liable for an injury due to the defective construction of the track, as though such company itself were operating the cars.

[Ed Note.-For other cases, see Railroads, Cent. Dig. §§ 817-823; Dec. Dig. § 260. ^[*]]

Where a railroad company verbally consents for a quarry company to operate cars on its track, and the quarry company transports over such road its employés to and from their work, an employé of the quarry company who has no connection with the operation of the train while being so transported sustains to the railroad company the relation of passenger to the extent that the railroad company and its licensee is bound to exercise extraordinary diligence to keep from injuring him.

[Ed Note.-For other cases, see Carriers, Dec. Dig. § 238 ^[*]]

Where there have been two concurring verdicts for the plaintiff, and no error of law has been committed, and the verdict is amply supported by the evidence, and the trial judge states in his order granting a new trial that he does so mainly because in his opinion the evidence does not sustain an essential allegation of the plaintiff's petition, the judgment granting a new trial will be reversed where it appears that the trial court erred in deciding as to the legal effect of the evidence, which influenced him in granting a new trial.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3871-3873; Dec. Dig. § 979. ^[*]]

Error from Superior Court, De Kalb County; L. S. Roan, Judge.

Personal injury action by J. E. Gregory against the Georgia Granite Railroad Company. There was a verdict for plaintiff, which was set aside and a new trial granted, and plaintiff brings error. Reversed.

Hulsey & Field and J. D. Kilpatrick, for plaintiff in error.

Westmoreland Bros. and Howard & Bolding, for defendant in error.

EVANS P.J.

The Georgia Granite Company, a corporation, owns and operates a quarry about three miles distant from Lithonia, a station on the Georgia Railroad. In 1904 the Georgia Granite Railroad Company, a corporation chartered under the general railroad law by the Secretary of State, constructed a railroad from the quarry to Lithonia. For the sake of brevity hereafter we shall refer to the Georgia Granite Company as the quarry company and the Georgia Granite Railroad Company as the railroad company. The same person was the president of both corporations. The secretary and treasurer of the railroad company was the general manager of the quarry company and the vice president of the railroad company was the superintendent of the quarry company. The railroad company had no equipment, and, immediately after the completion of its track, the quarry company used it in transporting their output to Lithonia. The quarry company has an engine, but no cars, and the cars which it uses are furnished by the Louisville & Nashville Railroad Company, which operates the Georgia Railroad as lessee. The quarry company employs the engineer, the fireman, and trackmen, who operate the railroad and keep up its track. There is no formal written lease from the railroad company to the quarry company, and the latter operates the road under verbal arrangement, whereby the quarry company pays the engineer, fireman, and trackmen, and charges this expense to the railroad company. The terminus of the railroad at the quarry is called Rock Chapel, and there are two road crossings between Rock Chapel and Lithonia. In addition to transporting the product of the quarry, the quarry company also hauled fertilizers, cotton seed, and lumber for other persons, and collected freight for the same. Neither the quarry nor the railroad company maintained a ticket office or freight depot, nor was any fare ever charged or collected for carrying passengers. It was usual and customary for the quarry company to haul its employés to and from their work on the train, and to this end they left Lithonia after the arrival of the early passenger train on the Georgia Railroad for the accommodation of its employés who came daily by that train. It was also usual to stop at the road crossings between Lithonia and Rock Chapel to allow its employés to get aboard or leave the tram. It was customary, not only to haul the employés of the quarry company, but also any other person in the community who wished to ride; and this custom was known to the railroad company and quarry company. In December, 1905, J. E. Gregory, an employé of the quarry company, whose work was not at all connected with the operation of the locomotive or train, while riding with numerous other employés from his work, was injured by the derailment of a car. He sued the railroad company for damages, alleging that he was riding on this car with the knowledge and sanction of the vice president and superintendent of the railroad company; that he had paid no fare as a passenger, and did not expect to be called on to pay any fare as a passenger, but that he was able and willing and ready to pay fare had any been demanded of him; and that the derailment of the car was due to the defective construction and maintainance of the track. The defendant denied liability, and especially that it was negligent as charged. The plaintiff prevailed, and a new trial was granted. The case was again tried, and the plaintiff obtained a second verdict, which was set aside on motion for a new trial; and it is to this judgment that the plaintiff excepts. In the order granting a new trial the judge stated that it was granted mainly on the ground that the evidence failed to establish the relation between the plaintiff and the defendant of passenger and carrier, as alleged in the petition.

From the identity of the officials of the two corporations, and the cessation of active management by the railroad company after the completion of the line of railroad, and the subsequent operation of it by the quarry company, the railroad tracks seems to have been constructed mainly for the use of the quarry company. The railroad company, after having obtained from the state a charter with authority to exercise the right of eminent domain, by virtue of which it laid its track, cannot afterwards surrender the exclusive use and control of its track to a private corporation for private...