Louisville & N. R. Co. v. Hailey

• Decision Date: 07 February 1895
• Citation: 29 S.W. 367,94 Tenn. 383
• Parties: LOUISVILLE & N. R. CO. v. HAILEY.
• Court: Tennessee Supreme Court

29 S.W. 367

94 Tenn. 383

LOUISVILLE & N. R. CO. v. HAILEY.

Supreme Court of Tennessee.

February 7, 1895

Error from circuit court, Davidson county; J. W. Bonner, Judge.

Action by J. G. Hailey against the Louisville & Nashville Railroad Company. There was a judgment for plaintiff, and defendant brings error. Reversed.

Baxter Smith, for plaintiff in error.

E. R Thurman, J. W. Moore, J. P. Hickman, and J. D. Wade, for defendant in error.

SNODGRASS C.J.

This is a suit for damages for injuries sustained on a freight train in Florida. There was a recovery of $1,000, and the defendant appealed in error.

The plaintiff, with others, applied, through one of the party for passage on a freight train, and was informed by the conductor that it was against the rules of the company to take passengers on that train without they had a permit from the superintendent, but nevertheless, after so advising them he took them on the train, and received fare from them as passengers, and they, being so advised, took passage in the caboose. This, with six other cars preceding it, was thrown from the track by a broken wheel, and the injury thus inflicted.

The circuit judge charged the jury that, if the plaintiff obtained passage under these circumstances, he was not entitled to all the rights of a passenger; but he did not tell them just what relation the plaintiff would occupy. He also refused to charge that the defendant owed plaintiff no other duty, under these circumstances, than not to willfully or intentionally injure him. In both respects there was error. The judge should have said to the jury that the regulation disallowing passengers on a freight train was a reasonable one, and the conductor of such a train, in the absence of assumed or proven authority, was not to be presumed as authorized to disregard it; and, if it appeared in evidence that instead of assuming such authority the conductor in fact told plaintiff or his representative making the contract that he did not have it, and the plaintiff then induced him to take plaintiff on the train in violation of such rule and disregard of his obligations to the company, he did not thereby become a passenger, or entitled to the rights of a passenger, but was a trespasser, and took the risk of injury as such. This is the law according to the great weight of authority, and manifestly as a matter of reason and justice. There is no evidence in the record as to what the law of Florida is, and therefore it is presumed to be the same as our own. The rule in this, as in many other states, is that, if one take passage on a train or in a car not provided for passengers without being advised that he is not permitted to ride on such train or car, he may recover for injuries sustained as a passenger while so riding. Washburn v. Railroad Co., 3 Head, 638. But the rule is different if he has no right so to believe, or is informed to the contrary. Railroad Co. v. Meacham, 91...