27 Ga. App. 728 | Ga. Ct. App. | 1921
Mrs. Faircloth sued the Ocilla Southern Railway Company for the homicide of her husband. She obtained a verdict for $15,000; the defendant’s motion for a new trial was overruled, and error is assigned thereon on the general grounds and on several special grounds. The evidence presents no conflict, and, substantially stated, is as follows: Plaintiff’s husband, on the day of the homicide and previous thereto, was employed to furnish cross-ties and wood to the railway company. This material was delivered to the company at different points on the line of the railroad from time to time by the decedent. The company paid the decedent so much a cord. He furnished wood and cross-ties to other persons also. In the original petition it is alleged that “it had been the custom of said railroad company to permit petitioner’s husband to ride upon said train
The evidence in support of these allegations is as follows: The partner of the decedent in the cross-tie and wood business testified that “they were authorized to ride on the trains of the Ocilla Southern Railroad without getting tickets.” Another witness testified that he had traveled on the trains with the decedent several times, and “ the conductor, or whoever was in charge of the operation of the trains, did not require decedent to pay any fare.” The plaintiff testified that she had “a talk with Mr. Henderson, who is the president of the road, about [her] husband being on that train and being killed, in which he said that he was in the wrong about allowing [her] husband to ride on the train, and he' was in the wrong by riding on them.” A witness testified that he heard the conductor ask the decedent, on the day of the homicide, “if he was not going with them, and he said he was.” The train on which the decedent was riding when he was killed consisted of an engine and three boxcars without any caboose attached, there were no passengers,
Was the decedent a passenger, a trespasser, or a licensee? It is not insisted by the defendant in error that he was a passenger, but it is insisted that he was a licensee. The plaintiff in error insists that he was a trespasser. The record contains no evidence tending to show any express authority from any official of the railroad company permitting the decedent to ride on the cars of the company without the payment of fare. The evidence is probably sufficient to authorize the conclusion that there was a custom, acquiesced in by the conductor in charge of trains, permitting the decedent to ride without the payment of fare. This custom, according to the evidence, seems to have been limited to riding on trains used and designed for the transportation of passengers. There is no circumstance in evidence indicating or tending to indicate that any implied permission was ever granted to the decedent to ride upon the freight-trains of the defendant company. Indeed there is no evidence that the company ever transported passengers on its freight-trains, the evidence tending to show that the freight-train on which the decedent was killed was the first freight-train that had ever been used by the railroad company for any purpose, and therefore that no such custom could have arisen as to freight-trains. All the evidence as to the existence of a custom permitting the decedent to ride on the trains of the company relates to those trains which carried passengers. A license to ride on trains designed and used for the transportation of passengers cannot be relied
No custom or rule of the defendant company is shown for
Judgment reversed.