Harris v. City & E. G. R. Co.

• Decision Date: 14 March 1911
• Parties: HARRIS v. CITY & E.G. R. CO.
• Court: West Virginia Supreme Court

70 S.E. 859

69 W.Va. 65

HARRIS v. CITY & E.G. R. CO.

Supreme Court of Appeals of West Virginia.

March 14, 1911

Submitted June 5, 1909.

Syllabus by the Court.

A servant, employed to labor by the day in the power house of a railway company, and who is furnished with a free pass, under a rule of the company, which entitles him to ride on any of the company's cars at any time, and about his own business, during the continuance of his employment, is a "passenger" when riding either to or from his place of labor, and not a fellow servant of the motorman in charge of the car, and is entitled to the same rights as a passenger for hire.

If such servant is injured, or killed, through the negligence of a motorman while so riding, the railway company is liable.

Error to Circuit Court, Ohio County.

Action by Oliver P. Harris against the City & Elm Grove Railroad Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Russell & Russell, for plaintiff in error.

R. M Addleman and John J. Coniff, for defendant in error.

WILLIAMS P.

Plaintiff's intestate was employed as an ash hauler at defendant's power plant and was paid $2 a day for his services. His working hours were from 8 a. m. to 5 p. m. It was defendant's custom to supply its employés with badges which entitled them to ride on any of its passenger cars at any time, and even when traveling on their own business or pleasure. To entitle the employé to one of these badges he had to deposit with the company 50 cents, which was returned to him whenever his employment with the company ceased. On the morning of October 30, 1907, deceased was riding, on his pass, on one of defendant's passenger cars from Mt. De Chantel to the place of his work at Elm Grove, when, between 7 and 8 o'clock, the car ran into a gravel car standing on the main track and he was killed. His administrator brought this action for negligently causing his death, and recovered a judgment for $6,500. Defendant offered no evidence, but the case was tried on a demurrer to plaintiff's evidence, and the jury found an alternative verdict. The court overruled the demurrer and rendered judgment, and defendant obtained this writ of error.

There is no conflicting evidence, no controversy as to what the facts are, and no doubt but that the death of deceased was attributable to the negligence of defendant's employés. The case turns solely upon the legal question whether, or not, deceased was a passenger or a fellow servant with those whose negligence caused the accident, at the time he was killed. The decisions on the question whether, or not, on the state of facts shown to exist in this case, an employé occupying the position of deceased at the time he was killed is to be regarded as a passenger, or a fellow servant, are not uniform; but according to the great weight of the decisions he is a passenger, and is entitled to all the rights of a passenger for hire.

His badge was equivalent to a pass, and it matters not that it may have been gratuitous. It does not appear that deceased had waived any of his rights as a passenger in accepting this pass, even granting that it might be lawful for him to do so to a limited extent, which question, however, we do not decide, still his badge, or pass, so far as the record discloses, entitled him to the same rights as a passenger for hire. Dickinson v. Railway Co., 177 Mass. 365, 59 N.E. 60, 52 L.R.A. 326, 83 Am.St.Rep. 284; Todd v Railway Co., 3 Allen (Mass.) 18, 80 Am.Dec. 49; Doyle v. Railroad Co., 162 Mass. 66, 37 N.E. 770, 25 L.R.A. 157, 44 Am.St.Rep. 335; Steamboat New World v King, 16 How. 469, 14 L.Ed. 1019; State v. Railroad Co., 63 Md. 433; Gillenwater v. Railroad Co., 5 Ind. 339, 61 Am.Dec. 101; Transit Co. v. Venable, 105 Tenn. 460, 58 S.W. 861; Williams v. Railroad Co., 18 Utah 210, 54 P. 991, 72 Am.St.Rep. 777; Railroad Co. v. Scott's Adm'r, 108 Ky. 392, 56 S.W. 674, 50 L.R.A. 381, 22 Ky. Law Rep. 30; Haas v. Railway Co., 111 Mo.App. 706, 90 S.W. 1155; Simmons v. Railroad Co., 41 Or. 151, 69 P. 440, 1022; McNulty v. Railroad Co., 182 Pa. 479, 38 A. 524, 38 L.R.A. 376, 61 Am.St.Rep. 721.

Counsel for defendant rely upon the cases of Sanderson v. Lumber Co., 50 W.Va. 42, 40 S.E. 368, 55 L.R.A. 908, 88 Am.St.Rep. 841; Oliver v. Railroad Co., 42 W.Va. 703, 26 S.E. 444; Jackson v. Railroad Co., 43 W.Va. 380, 27 S.E. 278, 31 S.E. 258, 46 L.R.A. 337; and Kniceley v. Railroad Co., 64 W.Va. 278, 61 S.E. 811, 17 L.R.A. (N. S.) 370, as decisive of this case. In all of these cases the injury occurred at the very moment while the servant was engaged in the services of his master and was evidently one of the risks which the servant had assumed while engaged in such services. In the Oliver Case and in the Jackson Case, plaintiffs were brakemen and were injured while attempting to couple cars; this was their duty and in the direct line of their employment. In the Kniceley Case it appears that the plaintiff was injured, while loading lumber on a car standing on a track, by the negligence of the engineer in bumping other cars into the one which plaintiff was loading. Plaintiff was employed by one Cowgill who had the contract, by the job, with the railroad company for hauling and loading the lumber on the cars. The injury occurred in the direct line of his employment and at the moment when he was engaged in performing services for which he was employed. It was clearly a risk which he had assumed by his contract of service. The Sanderson Case is the only one of these cases which presents a state of facts somewhat similar to the facts in the present case, and there is a very important feature in that case which is lacking in the present case. Sanderson was foreman of the lumber camps of defendant, who operated a short line of railroad in connection with its lumber business. It was the custom for plaintiff to ride on the log trains from the lumber camp to the mill whenever the duties of the defendant required his presence at the company's office which was located at the mill. On one occasion plaintiff was riding on the log train from the lumber camp to the mill when, at a curve in the road, the train jumped the track and plaintiff was injured. This court held that at the time of his injury he was engaged about his master's business, that his duties to the master required him, when occasion made it necessary, to ride back and forth between the office and the lumber camp on the log train, and that he was a fellow servant with the engineer, and that the risk of danger from the engineer's negligence was one of the risks comprehended by his contract of employment, and that, therefore, he could not recover. The court, in its opinion by Judge Dent, says: "This case depends greatly on the question as to whether the plaintiff is to be treated as a passenger on the train for fare, express or implied, or an employé engaged about his master's business and traveling on the train for the convenience of such business. If in the former capacity he assumed neither the risks of the master's negligence nor of the servants operating the train, and, as there is evidence tending to show both, the verdict could not be disturbed unless contrary to the plain preponderance of the evidence which in such event does not exist, and the judgment would have to be affirmed." It further appears from the opinion in that case that the plaintiff admitted that his duty to his employer required him to travel on the log train between the lumber camp and the mill, and this is one of the points that decided the case against him. If the services which he had engaged to perform required him to ride on the log train, the risk of injury which might result from the negligence of other employés, engaged in operating the train, was necessarily one of the risks which he had assumed. This evidently made him a fellow servant with the trainmen. They were all engaged in a general business of getting the timber to the mill, and were so engaged at the moment the accident happened.

"One may be both a passenger and an employé of a railroad company; an employé when passing over the road at a time when actually engaged in performing duties for the company, but a passenger while not so engaged, but riding from one place to another, even though continuing all the while in a popular sense in the employment of the company." 5 A. & E. E. L. 516. See, also, 2 Labatt on Master & Servant, § 624, p. 1832.

The capacity in which he is to be regarded depends upon whether or not, his duties to his master required him to ride on the train, and whether, or not, the relation of master and servant existed at the moment of the injury. If his time, at the instant of the injury, did not belong to the master, and if his contract of service did not contemplate that he should ride on defendant's cars as a means of furthering his master's business, then he was not a fellow servant, but a passenger. The badge on which Harris was riding permitted him to ride on any one of the defendant's cars at any time, and even when engaged in his own business or pleasure. It was equivalent to a pass good as long as he continued in the service of defendant, and it is immaterial whether it was purely gratis or whether it was a part of the consideration for his services. In either event he was entitled to the rights of a passenger because at the time of the fatal accident he owed the master no duty, he was not then engaged in performing the services for which he had been employed, nor did his duties require him to ride on defendant's cars. The proof shows that he owed service to the master from 8 a. m. to 5 p. m. His time from 5 p. m. to 8 a. m. was his own, and he could employ it as he pleased. He was not obliged to ride on defendant's car to reach his place of labor,...