155 Ga. 54 | Ga. | 1923
The controlling question in this case is whether the trial court erred in overruling the special demurrer to paragraph 7 of the petition, as set out in the statement of facts. If the plaintiff’s son was a passenger on the train, the defendant would owe him the duty of extraordinary diligence to protect his person and life. Civil Code (1910), § 2714. If he was a trespasser on the train, the company would not owe him the duty of extraordinary diligence (Purvis v. Atlanta Northern Railway Co., 136 Ga. 852 (3), 72 S. E. 343), though he would be entitled to protection against willful, wanton, and unnecessary violence by the employees in expelling him from the train. Smith v. Savannah, Florida & Western Railway Co., 100 Ga. 96 (27 S. E. 725); Anderson v. Southern Railway Co., 107 Ga. 500 (33 S. E. 644). It follows that in a suit of the character under consideration vital consequences depend upon whether the injured person was a passenger at the time of the injury. His status as a passenger must depend upon the existence or non-existence of antecedent facts of varying character, as illustrated by numerous decisions of this court. It is said in the Civil Code (1910), § 2715: “A carrier may demand prepayment of fare; but if, by its permission, persons enter its vehicle with the intention of being carried, an obligation to pay fare is implied on the part of the passenger, and the reciprocal liability of the carrier arises.” This affords one instance of a definition of passenger, but is not exhaustive. There is no .statute in this State giving a complete and exhaustive definition of the term “passenger.” The relation arises out of contract express or implied, and must depend upon the facts of each case, which are necessarily variable. As illustrative of the variety of facts upon which the relation of passenger may arise, a few cases may be cited. Atlanta &c. Ry. Co. v. Ayers, 53 Ga. 12; Stevens v. Central R. Co., 80 Ga. 19, 22 (5 S. E. 253); Western & Atlantic R. Co. v. Turner, 72 Ga. 292 (1 a) (53 Am. R. 842);
The ruling announced in the second headnote does not require elaboration.
Judgment reversed.