4 Ga. App. 672 | Ga. Ct. App. | 1908
West sued the Southern Railway Company to recover damages for personal injuries. The material portions of his petition are as follows: “(3) That on said 10th day of July, 1905, petitioner was employed and for sometime prior thereto had
The defendant demurred to the petition and moved the court to dismiss it, because “the plaintiff sues as a passenger on the defendant’s train, and seeks to hold it to a degree of care required of
In determining the legal status of the plaintiff at the time he received the injuries complained of, the question must be decided according to the general law, and not under any statutory law of this State, where the suit was brought, or of the State of Alabama, where the injury occurred. No statute of the State of Alabama is pleaded as a basis of recovery, and, of course, no statute of this State would be applicable to the case. We think that the facts set forth in the declaration make a good cause of action, under the common law, to recover damages for personal injuries. If these facts show that the plaintiff was at the time a passenger, he was entitled, under the principles of the common law, to extraordinary care and diligence by the defendant. If the facts show that he was, mot a passenger, but was a servant, and that his injuries were inflicted by the negligence of the master, without any contributory .negligence on his part, he would be entitled to ordinary diligence on the part of the master. In our opinion, under the facts as set forth by the plaintiff, he did not occupy the relation of a passenger to the defendant when he received his injuries.
The status of employees of railroad companies, not connected with the running of the trains, and while being transported upon the trains of the companies, has frequently been before the courts. 'There is some conflict as to whether an employee carried to and from his work on a car, while being so carried, becomes a passenger, or remains as an employee. Elliott, in his work on Railroads, states that “the weight of authority, however, as well as the better reason, is clearly to the effect that where he is so carried he is not a passenger, but is, ordinarily, to be considered as an employee and
Applying to the facts in the petition the test here laid down, the conclusion is irresistible that the plaintiff, at the time he was injured, was not a passenger. He was not traveling upon his own business, but was traveling in the car of the railway company, in direct connection with his ordinary duty as an employee. He had finished his work on the bridge of the company at one point of the railroad, and, following the' orders and directions of the foreman of the' bridge gang, went aboard the company’s cars to be transported to Birmingham, Alabama, a distance of twenty miles, presumably for the purpose of continuing his work and employment for the company. He alleges that the bridge gang, of which he was a member, were' required by the railroad company to live in some old passenger coaches, and to be moved, in the execution of their special employment, by the railroad from one place of work to another. It would be illogical to claim that while engaged at the places of work they would be employees of the company, but when transported between such places they would cease to be employees and become passengers. It was the plaintiff’s duty to travel in the cars provided for that purpose by the company, to those places along the line of the companj^’s railroad where his services were required. While thus traveling he continued in the service of the company, and was doubtless paid for his time, and we can perceive no substantial reason for holding that the relation between himself and the master and his fellow-servants was broken while he was being transported from place to place of his work, and that it was re-established when he actually resumed work.
The petition alleges that the railroad company was negligent in that it furnished a defective car in which to transport the plaintiff to his place of work. The defects in the car are specified. It was the duty of the railway company to furnish a safe car for the plaintiff to ride in, and the plaintiff was under no duty to inspect the ear to see that it was in a safe condition. This was the duty of the company. Dennis v. Schofield’s Sons Co., 1 Ga. App. 489
To conclude, we think that the facts set out in this petition make a case of liability; not the liability of a railroad company to a passenger, but the liability of a master to a servant; and the right of the plaintiff to recover, if he proves these facts, can not be legally affected by his erroneous conclusion that he occupied the relation of a passenger. For this reason we think the judgment overruling the demurrer should be affirmed.
Judgment affirmed.