Lanier v. Bugg

• Decision Date: 25 April 1924
• Docket Number: 15349.
• Parties: LANIER v. BUGG.
• Court: Georgia Court of Appeals

123 S.E. 145

32 Ga.App. 294

LANIER v. BUGG.

No. 15349.

Court of Appeals of Georgia, Second Division

April 25, 1924

Syllabus by the Court.

One who is transported over the line of a railroad company by virtue of a gratuitous pass, providing by its terms that "the person accepting and using it thereby assumes all risk of accident to person or property," is not entitled as of legal right to any degree of diligence at the hands of the company or its servants, and the company is not liable for an injury to him because of mere negligence, though gross; the parties having, as they were free to do, provided otherwise by their contract. The company cannot be held liable in such case unless the injury was inflicted willfully or wantonly. Holly v. Southern Ry. Co., 119 Ga. 767, 47 S.E. 188; Wright v. Central of Georgia Railway Co., 18 Ga.App 290 (1), 89 S.E. 457; Hearn v. Central of Georgia Railway Co., 22 Ga.App. 1, 95 S.E. 368; Charleston & Western Carolina Railway Co. v. Thompson, 13 Ga.App. 528, 80 S.E. 1097; Charleston & Western Carolina Railway Co. v Thompson, 234 U.S. 576, 578, 34 S.Ct. 964, 58 L.Ed 1476.

(a) This rule will apply to an employee who is riding upon such a pass, where his travel is in no way connected with his employment. Charleston & Western Carolina Ry. Co. v Thompson, supra; Charleston & Western Carolina R. Co. v. Thompson, 234 U.S. 576, 578, 34 S.Ct. 964, 58 L.Ed. 1476; New York Central R. Co. v. Mohney, 252 U.S. 152, 40 S.Ct. 287, 64 L.Ed. 502, 9 A.L.R. 496; Tharp v. Central of Georgia Ry. Co., 31 Ga.App. 598 (2), 121 S.E. 592.

"Negligence relatively to the safety of any particular person is the breach of some diligence due to that person. Where no duty of diligence appears relatively to the person injured, there can be no presumption of its breach." Holland v. Sparks, 92 Ga. 753, 18 S.E. 990. (1) In an action against a railroad company for the homicide, by the running of its cars, of one riding upon the train by virtue of a free pass containing the stipulation set out in the first headnote, the burden is on the plaintiff to prove that the acts or omissions of the company causing the death were willful or wanton. No presumption of willfulness or wantonness can arise against the company under Civ. Code 1910, § 2780. Southern Railway Co. v. Davis, 132 Ga. 812 (3), 818, 65 S.E. 131; Tice v. Central of Georgia Ry. Co., 25 Ga.App. 346 (1b), 103 S.E. 262.

Evidence that the train was running at a speed of 40 to 45 miles per hour when the wooden coach in which the decedent was riding was derailed, that one of the wheels of this coach had a "crack," an "old break," in it "about four inches long" causing it to crush when it struck the ties, that many of the ties were badly decayed, so that the spikes in them were insecure, and consequently the rails unsteady, and that the conductor, when the car left the track, did not instantly give to the engineer a stop signal, and that the train thereafter continued to run with unslackened speed for 150 to 200 yards, until the coach was wrecked and the decedent, with several others, killed, did not, without more, show that the decedent's death was the result of willful or wanton misconduct on the part of the railroad company or its servants in the acts and omissions thus indicated, from which the catastrophe resulted. It follows that the court did not err in awarding a nonsuit.

Error from City Court of Atlanta; H. M. Reid, Judge.

Action by Mrs. M. F. Lanier against B. L. Bugg, receiver of the Atlanta, Birmingham & Atlantic Railroad Company. Judgment of nonsuit, and plaintiff brings error. Affirmed.

Hewlett & Dennis, of Atlanta, for plaintiff in error.

Colquitt & Conyers, of Atlanta, for defendant in error.

BELL J.

Mrs. M. F. Lanier brought her action for damages against B. L. Bugg, as receiver of the Atlanta, Birmingham & Atlantic Railroad Company, for the value of the life of her son, upon whom she was dependent and who was killed while traveling upon the defendant's train by virtue of a gratuitous pass containing the provision set out in the first headnote. The trial resulted in a nonsuit, and she brings the case here upon exceptions to that judgment.

The plaintiff's son was an employee of the railroad company, but was traveling at the time upon a mission wholly disconnected from his employment. It was averred that his death was the result of willful and wanton misconduct upon the part of the railroad company in certain respects specified in the petition, proof of which the plaintiff attempted by the evidence hereinafter referred to.

Only the third headnote seems to require elaboration. We do not understand that the plaintiff in error takes issue with the propositions announced in the first and second headnotes. It is earnestly contended, however, that the evidence was such as to make a case of willful and wanton misconduct, either by omission or commission, or both, from which the decedent lost his life,

With respect to the condition of the track one of the witnesses, W. P. West, testified:

"We looked at the wreck and saw that the train had jumped the track. * * * The track was spread, * * * and where it was spread the wheels went around on the cross-ties and cut the cross-ties. * * * Where the car first made an imprint on the track the cross-ties were rotten. When this car wheel hit them they just spread out like a box that they had run over. Just made a bunch of rotten splinters; just crushed all to pieces. The rail had slipped, I judge, two or three inches, maybe, where the seat was on the track. * * * I made an examination of the spikes up and down the track. There were some that were missing and some that had not been driven up, had been driven down, and the rotten ties would not hold some of them. I kicked one out with the toe of my shoe. In the thin part of the wheel, after it left what you might call the tire part, there was a crack about four inches; that was an old break. The other was fresh."

The testimony of the witness West is representative of that of several other witnesses relating to the same points. It appears that the cracked wheel was in some way disconnected from the car and was found to have about one-third of it broken off, presumably because of the crack or old break described by Mr. West. The evidence shows that the train was running at a speed of 40 to 45 miles per hour at the time of the derailment. The coach derailed was a wooden coach. One or more of the witnesses testified that when it was first noticed that something was wrong the conductor was in the coach subsequently derailed, and that he got up and went forward into another car. He did not give a stop signal in the car which he left. It does not appear that he did not do so later. The evidence tends to show that the speed of the train was not perceptibly checked until it had run something like 150 yards after the derailment. The coach so derailed was then wrecked when it reached a trestle, falling over an embankment with the...