132 Ga. 587 | Ga. | 1909
The Georgia Granite Company, a corporation, owns and operates a quarry about three miles distant from Lithonia, a station on the Georgia Railroad. In 1904 the Georgia Granite Railroad Company, a corporation chartered under, the general railroad law by the secretary of State, constructed a railroad from the quarry to Lithonia. For the sake of brevity hereafter we shall refer to the Georgia Granite Company as the quarry company and the Georgia Granite Railroad Company as the railroad company. The same person was the president of both corporations, the secretary and treasurer of the railroad company was the general manager of the quarry company, and the vice-president of the railroad company was the superintendent of the quarry company. The railroad company had no. equipment, and immediately after the completion of its track the quarry company used it in transporting their output to Lithonia. The quarry company has an engine, but no cars, and the cars which it uses are furnished by the Louisville & Nashville Railroad Company, which operates the Georgia Railroad as lessee. The quarry company employs the engineer, the fireman, and trackmen, who operate the railroad and keep up its track. There is no formal written lease from the railroad company to the quarry company, and the latter operates the road under verbal arrangement, whereby the quarry company pays the engineer, the fireman, and trackmen, and charges this expense to the railroad company. The terminus of the railroad at the quarry is called Rock Chapel, and there are two road crossings between Rock Chapel and Lithonia. In addition to transporting the product of the quarry, the quarry company also hauled fertilizers, cottonseed, and lumber for other persons, and collected freight for the same. Neither the quarry nor the railroad company maintained a ticket-
From the identity of the officials of the two corporations, and the cessation of active management by the railroad company after the completion of the line of railroad, and the subsequent operation of it by the quarry company, the railroad track seems to have been constructed mainly for the use of the quarry company. The railroad company, after having obtained from the State a charter, with; authority to exercise the right of eminent domain, by virtue of which it laid its track, can not afterwards surrender the exclu
The plaintiff alleged that he was a passenger on the car which was derailed, and relies on the foregoing recital of facts as sufficient to show that he sustained this relation to the defendant at the time of his injury. Although in the employment of the quarry company, the duties of his employment were entirely disassociated with the operation of the train. He worked at the quarry, and, in accordance with the general custom of the quarry company, was being transported from his work on its cars when injured. Treating the quarry company as the agent of the railroad company in operating its cars over the latter’s track, the servants of the quarry company operating the train, relatively to the public, were the servants of , the railroad company. But the employees of the quarry company, whose work had no connection with the operation of the train, were not the servants of the railroad company. As was said in Central R. Co. v. Henderson, 69 Ga. 716, “though one may be an employee of a railroad company, yet if his agency is disconnected from the running of trains, and while traveling he is injured, he stands in the position of a passenger.” In this case the plaintiff was a depot agent of the railroad company, and was traveling on.a pass. The exaction of fare by a railroad company is not essential in every case to make one riding on its ears a passenger. “One employed by a railroad company as a telegraph lineman, and who is transported to and from his work free of charge by the railroad company, and who while so traveling has nothing to do with the control or operation of the train on which he is riding, is a passenger to the extent that the company is bound to exercise extraordinary diligence to keep from injuring him.” Carswell v. M., D. & S. R. Co., 118 Ga. 826 (45 S. E. 695). The plaintiff was not on the cars by express permission, of the quarry company, but was riding in accordance with a general custom, known to its officials, and daily practiced from the time it began to run its engine over the railroad company’s track. The' quarry company’s permission1 for him to ride to and from his work will be implied from its general habit of transporting its employees to and,from their work.
The conclusion we reach is that under the undisputed evidence-the plaintiff sustained the relation of passenger to the defendant.
The ground's of the motion for new trial were that the verdict was contrary to law, contrary to evidence, contrary to the charge of the court, and that a certain excerpt from the charge was erroneous. There was ample evidence from which the jury could find, that the derailment of the ear was occasioned by the defective construction and maintenance of the railroad track, and that the plaintiff’s injury was due to the defendant’s negligence. The court charged the jury that the plaintiff could not recover unless'it appeared from the evidence that he was a passenger, and, in defining the relation of passenger and carrier, used this language: “What are these elements of fact? First, there must be a carrier of passengers, that is to say, there must be a person, natural or artificial, who must do a business of carrying the public. A railroad company would be an artificial person not a natural person. Second, there must be some person who is willing to be carried by the carrier, and carried under such terms and conditions as the carrier may lawfully prescribe. Third, the actual entry by such person into one of the vehicles furnished by the carrier for the purpose of being carried in accordance with such terms and conditions as the carrier may lawfully prescribe. When these elements of fact are all present, then the relation of carrier and passenger arises.”' Without stating the very elaborate criticism of this charge, it is manifest that there is nothing therein contained prejudicial to the railroad company. This is the second verdict for the plaintiff, and the court in its order granting a new trial states that he was mainly influenced to grant it because he did not think the evidence was sufficient to establish the relation of passenger. We differ with his honor as to the legal effect of the evidence on this subject. Where there have been two concurrent verdicts for the plaintiff on the same state of facts, and where no error of law has been committed, and where under all the evidence the verdict is not manifestly wrong, the trial judge should not, in the exercise of his discretion, grant' a second new trial. Dethrage v. Rome, 125 Ga. 802 (54 S. E. 654). The grant of the second new trial is
Reversed.