13 Ga. App. 528 | Ga. Ct. App. | 1913
(After stating the foregoing facts.) Lizzie Thompson brought suit against the Charleston & Western Carolina Bail-way Company for damages alleged to be consequent upon injuries received by her as a passenger. She alleged that she purchased a ticket and paid full fare for her transportation. To dispute this the defendant introduced a free pass, and the conductor testified that he received only this pass for the transportation of the plaintiff and her two children. For the reason that the evidence as to the nature of the plaintiff’s injuries is in conflict, it is unnecessary to consider the testimony as to the extent of her injuries, or the showing by the defendant company to the effect that her condition was due' to causes which anteceded the alleged injury.
The- three assignments of error in the grounds of the motion for a new trial as first amended raise two questions. One is as to the 'right of the plaintiff to recover if the jury believed she was traveling upon a free pass, and the other relates to the refusal of the court to instruct the jury that where the testimony of a party who offers herself as a witness in her own behalf is self-contradictory, vague, or equivocal, the jury should adopt that construction of it which is most unfavorable to her contention. The first exception naturally subdivides itself into two questions: (1) Can a person injured while riding upon a free pass recover for injuries other than those due to gross neglect on the part of the carrier ? (2) Can a member of the family of a railway employee who uses a pass' foi transportation, and who, under the provisions of the “Hepburn act” (act of June 29, 1906, c. 3591, 34 Stat. 584), is entitled to free
The question here directly involved does not seem to have been made in this State. But in Holly v. Southern Railway Co., 119 Ga. 767 (47 S. E. 188), the Supreme Court held that the plaintiff, who was riding upon a free pass, could not recover for the loss of her baggage; and it is so difficult to see how one riding on a free pass could recover for an injury to her person, due to negligence of a carrier, when for injury to or for loss of her property, due to such negligence, she can not recover, that it seems to us to be settled (upon the authority of the ruling in the Holly case) that a purely gratuitous passenger who accepts free transportation upon an agreement that he assumes all the risks of injury can not recover damages for an injury occasioned by the failure of the carrier to exercise extraordinary diligence. In the Holly case the Supreme Court held that “One who receives of a railroad company a gratuitous pass over its line, which by its terms is ‘issued only on condition that the person accepting it assumes all risks of accidents, and expressly agrees that the company shall not be liable, under any circumstances, for any injury to the person, or loss or damage .to the property of the person using it/ can not recover of the company the value of baggage lost while traveling on such pass.” In the decision in the Holly case, too, the Supreme Court expressly distinguished that case from Central Ry. Co. v. Lippman, 110 Ga. 665 (36 S. E. 202, 50 L. R. A. 673), by saying that in the Lippman case “the relation- of carrier and passenger existed between the defendant and the plaintiff in its full sense, while here there- was no Consideration whatever for the carriage.” And quoting from Muldoon v. Seattle City Ry. Co., 7 Wash. 528 (35 Pac. 422, 22 L. R. A. 794, 38 Am. St. R. 901), the court says: “When the intending passenger proposes to the carrier that it do something for him which it is not, under any conceivable circumstance, required by law or duty to do, viz., to carry him, without any compensation whatever, and when the whole matter is at the option of either party to agree or not, it is difficult to see why the public should step in and deny the right of the carrier to limit its chances of
Under the evidence in this ease it was questionable whether the plaintiff was carried in consideration of the payment of her fare or upon 'a free pass. It was also questionable, even if she was carried upon a free pass, whether she had knowledge of the stipulation attached to her ticket, and assented to the condition relieving the railway company from liability. But in Boering v. Chesapeake Beach Railway Co., 193 U. S. 442 (24 Sup. Ct. 515, 48 L. ed. 742), the Supreme Court of the United States held that a stipulation in a free railway pass requiring the user to assume the risks of injury due to the carrier’s negligence is binding on the person accepting the privilege, although notice of such stipulation may not have been brought home to her. And on the subject of notice the court said in that case: "She may not, through the intermediary of an agent, obtain a privilege — 'a mere license — and then plead that she did not know upon what conditions it was granted.” The court quotes from Quimby v. Boston & Maine Railroad Co., 150 Mass. 365 (23 N E. 205, 5 L. R. A. 846), the statement that "Having accepted the pass, he must have done so on the conditions fully expressed therein, whether he actually read them or not.” In Marshall v. Nashville Ry. &c. Co., 118 Tenn. 254 (101 S. W. 419, 9 L. R. A. (N. S.) 1246, 12 Ann. Cas. 675), the Supreme Court of Tennessee reviews the various cases and holds that carriers will not be permitted to protect themselves against the consequences of their own negligence in the carriage of goods or passengers while they are common carriers, but they may become the carriers of goods gratuitously, and the law will then hold them liable only as mandatories; that is, only for losses occurring through gross negligence. As mandatories they are liable only for gross negligence; when compensated for the carriage they are common carriers, regardless •of contract. This same doctrine, and the distinction growing out of the presence or absence of compensation, are forcibly stated in the decisions in Northern Pacific Railway Co. v. Adams, 192 U. S. 440 (24 Sup. Ct. 408, 48 L. ed. 513), and in Boering v. Chesapeake Beach Ry. Co., supra, which cite a large number of authorities and
As to the point that the passenger need not sign the contract of exemption, the cases of Wells v. New York Central Railroad, Boering v. Chesapeake Beach Ry. Co., Muldoon v. Seattle City Ry. Co., and Quimby v. Boston & Maine Railroad, supra, are in point. The Civil Code provides that a carrier may by express contract relieve itself from liability: “A common carrier can not limit his legal liability by any notice given, either by publication or by entry on receipts given or tickets sold. He may make an express contract, and will then be governed thereby.” § 3736. In the Lippman case, supra, Justice Little points out that the term “common carrier” applies only to carriers of freight, and that the term “carrier of passengers” should be applied to those who are engaged in that occupation. In the present case the distinction is perhaps immaterial, because it is not generally borne in mind by those courts which have dealt with the question now before us. In view of the ruling in the Holly ease, supra, as well as the persuasive force of later rulings of the Supreme Court upon the kindred question, we think the rule should be that one who is riding without the payment of any compensation therefor is not entitled to recover damages for injuries when they are due to negligence less than gross negligence and when there is no admixture of wilfulness or wantonness.
However, we bear in mind that in the present ease there is evidence which authorized the jury to find that if the plaintiff was in
As was said by Mr. Justice Harlan in Louisville & Nashville Railroad Co. v. Mottley, 219 U. S. 467, 478-9 (31 Sup. Ct. 265, 55 L. ed. 297), in dealing with an attempt on the part of the defendants in error to enforce a contract guaranteeing them free passes during their lives, in consideration of the settlement of a claim for personal injuries, “Manifestly, from the face of the commerce act itself, Congress, before taking final action, considered the question as to what exceptions, if any, should be made in respect to the prohibition of free tickets, free passes and free transportation.” It must be inferred, from a careful reading of that decision, that since the contract in that case, no matter how just, could not be enforced, because Congress, after due deliberation, had not excepted existing contracts, the same legislative power has, by means of a special exception, placed the right of employees and their families to accept free transportation in interstate carriage upon such grounds as not to subject it to attack as being contrary to public policy. We think it follows, too, that Congress, in considering the question of exceptions to the rule that all charges for transportation must be paid in money, as stated in that case, took also into consideration the fact that transportation might be given by the carrier, and accepted by employees, as partial pay
It may be admitted that the provisions of the act -of Congress, supra, do not require interstate carriers to issue free transportation to their employees, nor place upon any carrier the duty of granting free transportation, either to employees or to any other class which Congress has made a matter of special exception, by permitting these carriers to grant free transportation to such persons only as are enumerated in the act. For reasons which Congress adjudged sufficient (as pointed out by Mr. Justice Harlan), carriers engaged in interstate transportation were given permission to issue free passes to employees and dependent members of their families, and upon the use of this privilege it placed no limitation inconsistent with the theory that as between employer and employee the monetary value of such transportation (even if used as a mere matter of pleasure to the members of the employee’s family) might be taken into consideration as a part of the employee’s compensation. The alleged free-pass contract was apparently made in the State of Georgia, and is to be construed by the law of this State. 6 Cyc. 580, 'and citations. And while we think that generally a stipulation in a free pass to the effect that the person who accepts such transportation shall himself assume all risk of injury is enforceable, and as to a passenger who has accepted free
As pointed out in several of the decisions to which we have referred, and also in some of the rulings of the Supreme Court of the United States which we have investigated, the extension of the privilege of sometimes riding upon the trains of the railway company by which they are employed is an item of value to employees and in a measure compensatory for their services. As heretofore stated, it enables such companies, perhaps, to obtain the services of their employees at a lower price than would otherwise be the case, and it may be presumed that it is mutually understood and agreed' between employer and employee that a deduction be made on this account from the probable amount which would otherwise be paid for services. In a case in which this was shown to be true, it could not be said that the privilege of transportation, though nominally free, was gratuitous. And where the proof shows that it was expressly understood that free transportation should be furnished, or where it appears that the custom of furnishing its employees transportation on the part of the company is so uniform and universal as to. reasonably raise’ the
Note: A'writ of error from the Supreme Court of the United States was granted in this case.