131 Ga. 475 | Ga. | 1908
Hallie Morris brought an action against the Georgia Railroad & Banking Company, for damages from the homicide of her husband, Booth S. Morris, by the alleged negligence of the defendant company. The petition was dismissed on general demurrer, and the plaintiff excepted. The substance of the petition, so far as material to the points presented for adjudication, was: The plaintiffs husband was riding on the engine of a passenger-train of the defendant, with the knowledge and by the consent and on the invitation of the conductor, engineer, and fireman of such train. As the train was running around a curve, at the speed of sixty miles an hour, it was derailed, because the cross-ties were rotten and the outer rail was not sufficiently elevated, and plaintiff’s husband was thereby killed. It was alleged, that he was lawfully on the train, that he was twenty-six years old, and, “as a railroad fireman, was earning a sum of eighty dollars per month,” and that “Said rate of speed . . was reckless, and the negligence aforesaid causing said catastrophe was gross, and said persons running said train knew full well of the presence of the deceased on said engine.”
Tlie decedent for whose homicide the action was brouglit was, at the time he was killed, riding on the engine of a passenger-train of the defendant, on the invitation and with the knowledge of the conductor and the engineer and fireman on the engine.- His death was the result of the derailment of the train, caused by a defective track. It is not alleged in the petition that he was a passenger or employee of the defendant. There is, however, an allegation that he “was lawfully being carried upon a passenger-train of said railroad company,” but manifestly this is the statement of a mere conclusion from the allegation that the decedent was riding on the-engine on the invitation and with the knowledge of the conductor, engineer, and fireman, and, therefore, can not be properly treated as an averment of fact. Whether the decedent was a passenger and the defendant owed him the extraordinary care required of railroad companies for the safety of passengers, or was a mere trespasser, to whom the only duty of the defendant was to abstain from wantonly or wilfully injuring him, is dependent upon whether the conductor, engineer, or fireman, under the facts of the case, was authorized to invite and permit him to ride upon the engine. While a principal is bound by the acts of his
The underlying principle of the authorities cited is applicable to and controlling in the case now under consideration; for whatever may be the presumption as to one riding in a passenger-coach or other conveyance of a railroad company evidently designed for the transportation of passengers, by invitation or permission of the emplojí-ees of the company in charge of such conveyance, there can be no doubt, in our opinion, that a conductor of a passenger-train, though he has charge thereof' and represents the company in determining what persons are entitled to ride upon the train committed to his charge, has no authority, in the absence of any rule or known custom to the contrary, to permit persons to ride free on the engine of his train, because a passenger-train is obviously operated by the company for the transportation of passengers for hire, suitable provision being made in the way of coaches for their accommodation, and it must be perfectly apparent to all persons of average intelligence, who have reached the years of discretion, that the engine is not designed for carrying passengers. It is not alleged that plaintiff’s husband paid any fare or that he intended to pay any. He was twenty-six years of age, was a locomotive fireman (but apparently not in defendant’s employment) and presumably a man of ordinary intelligence, and, therefore, must have certainly known, no rule or custom appearing to the contrary, that the conductor had no authority to invite or allow him to ride free on the engine. His death was not caused
Judgment affirmed.