Lawrence v. Kaul Lumber Co.

• Decision Date: 13 April 1911
• Citation: Lawrence v. Kaul Lumber Co., 171 Ala. 300, 55 So. 111 (Ala. 1911)
• Parties: LAWRENCE v. KAUL LUMBER CO.
• Court: Alabama Supreme Court

55 So. 111

171 Ala. 300

LAWRENCE v. KAUL LUMBER CO.

Supreme Court of Alabama

April 13, 1911

Appeal from Circuit Court, Coosa County; S. L. Brewer, Judge.

Action by J. P. Lawrence, as administrator, against the Kaul Lumber Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Whitson & Harrison, for appellant.

A. G. &amp E. D. Smith, Felix L. Smith, and Riddle & Allen, for appellee.

SOMERVILLE J.

While riding on a train of cars operated by the defendant, in April, 1905, plaintiff's intestate was killed by reason of the derailment of the car in which he was sitting; the car after leaving the rails being overturned, and crushing the deceased underneath its weight.

Defendant was not a common carrier of either freight or passengers, and operated no passenger trains. It built and operated a short line of railroad from its logging camp and commissary at Woodbine to the Central of Georgia Railroad at Overbrook from which point to Sylacauga it used the C. of G. track. Its road was designed for its own use in its logging and lumber business; but a custom had arisen of allowing its hands and employés to ride to and fro on its freight trains for their own convenience, which was in time extended apparently to all persons who sought the privilege.

The deceased was employed or hired by defendant to cut ties on its lands at so much a tie, and at his discretion. Otherwise he had no relations with the defendant or its business. On the occasion of his death, he and a number of others had ridden up to Sylacauga, and were returning to Woodbine. The derailment occurred on defendant's own track, and the train, consisting of an engine and a single box car pushed in front of it, was moving at a speed of three or four miles an hour. The grade of the road at this point had been constructed about a year before, and the track laid within four months. The grade had not been surfaced up, and a force of hands were then engaged in that work. The evidence is in conflict as to the condition of the track at or near the point of derailment. The plaintiff's evidence tends to show that at or very near such point, which was on a curve the outer rail sagged for a space of four or five ties, and was thereby made lower than the inner rail; while defendant's evidence tended to show that the sagged space was for only one or two ties, and the outer rail was level with the inner rail.

The complaint is in 17 counts, and to each count numerous grounds of demurrer were interposed. These were sustained as to counts 3, 4, 5, 6, 7, 8, 9, 10, 11, and 12, leaving for issue counts 1, 2, 13, 14, and 17. All of these counts predicate the right of recovery on the defendant's breach of duty to deceased while being carried as a passenger on its train and counts 2, 13, and 14 are for wanton or intentional wrong.

To these counts defendant pleaded the general issue, and special pleas 3, 4, and 5, which, in substance, assert deceased's knowledge of the unsafe condition of the track for passengers, and that so knowing he voluntarily boarded the car and exposed himself to the danger, without invitation from or compensation to the defendant. Plaintiff's demurrers to pleas 3 and 4 were overruled, and to plea 5 sustained. These various rulings on demurrers to complaint and pleas, with several rulings on testimony offered by plaintiff, make up the 45 assignments of error.

1. If counts 3 to 12, inclusive, had not been eliminated by demurrer, plaintiff could not possibly have recovered under any of them, since the evidence shows without dispute, and plaintiff's counsel in argument assert, that there was no relationship of master and servant between deceased and the defendant. We are therefore unwilling to consider the theoretical merit of the first 10 assignments of error, because the errors, if any, were entirely harmless.

The 11th and 12th assignments, relating to counts 15 and 16, are not argued, and must be treated as waived.

2. To constitute one a "passenger" who is riding on a train, it is well settled that it is not necessary that the carrier should be a common carrier, nor that the train or car should be used or adapted primarily for carrying passengers. Birmingham R., L. & P. Co. v. Adams, 146 Ala. 267, 272, 40 So. 385, 119 Am. St. Rep. 27. It is also well settled that the person transported is none the less a passenger, because he pays nothing for his carriage, or because he rides for his own convenience solely, by the courtesy of, and absolutely without profit to, the carrier. 5 A. & E. Ency. Law, 507; 1 Am. & Eng. Ann. Cas. 451, note; Indiana Traction Co. v. Klentschy, 167 Ind. 598, 79 N.E. 908, 10 Am. & Eng. Ann. Cas. 869; Harvey v. Deep River Logging Co. (1907) 49 Or. 583, 90 P. 501, 12 L. R. A. (N. S.) 131. The essential requirement seems to be only that the passenger is accepted as such--that is, for transportation by the carrier; the trust and confidence thereby induced, on considerations of public policy, imposing upon the carrier the duty to reasonably safeguard, and not negligently injure, the person so carried. In some of its applications, this rule is undoubtedly a harsh one, and the results sometimes seem scarcely consistent with reason and justice.

When, however, the passenger chooses to be transported on a train, not adapted to passenger service, such as a freight or a logging train, while he does not waive the carrier's duty of due care with respect to his safety, he does waive all such precautions, whether in equipment or operation, which are inconsistent with the ordinary use and conduct of such a train, and cannot expect the carrier to change or adapt his service to the extraordinary requirements of a common carrier of passengers. In other words, he assumes the risk of injury from such accidents as are incident to such trains when equipped and operated in the usual way. Southern Ry. Co. v. Crowder, 130 Ala. 256, 263, 30 So. 592; Harvey v. Deep River Logging Co., 49 Or. 583, 90 P. 501, 12 L. R. A. (N. S.) 131.

3. But if the carrier is not a common carrier of passengers, and has not expressly contracted to carry in the particular case, a person entering upon its train and taking passage thereon might be, under various circumstances, either a passenger, a licensee, or a trespasser. If his presence is without the knowledge and consent of any one in charge of the train, he is but a trespasser. If on the invitation, or with the knowledge and acquiescence, of such an agent, not authorized nor shared in by his principal--the carrier itself, or its alter ego--such person would be but a licensee. McCauley v. Tenn. Co., 93 Ala....