Birmingham Railway Light & Power Co. v. Sawyer

TYSON, C. J.

In each of the counts it is alleged that plaintiff was a passenger on defendant’s car at the-time he was injured. It is scarcely necessary to say that this is a material allegation, and must be proven. If the relation of the parties as that of carrier and passenger was not shown, but that of master and servant, or that of a mere licensee, of course, there could be no recovery in this case. In short, the plaintiff cannot be permitted to allege one relation and prove another. If the plaintiff was riding on the car by virtue of his employment and in that relation to defendant, or if he was accorded the privilege of riding solely on account of his being an employe, it is obvious that the rules of evidence governing the defendant’s liability and the measure of damages recoverable would be entirely different from those that would obtain and control in the case-of a passenger. If a passenger, as alleged, upon mere proof of the collision and injury, his prima facie right of recovery was established under those counts charging simple negligence. On the other hand, if he was riding as an employe, in addition to showing a collision and injury, he would have to adduce some evidence tending to show negligence, or if as a licensee the only duty defendant owed him was not to wantonly or intentionally injure him, or to exercise due care to avert the injury *201 after Ms danger became apparent. — McCauley v. T. C. I. & R. Co., 93 Ala. 356 , 9 South. 611 . Besides, tbe degree of care required with respect to plaintiff as passenger and that of an employe would be entirely different. As a passenger tbe defendant, as a carrier, owed bim tbe highest degree of care; as Ms employer it only owed bim tbe duty of exercising reasonable care not to injure bim. It thus becomes apparent that tbe question whether or not plaintiff was a passenger is an important one.

Was be a passenger? According to bis own testimony, which was in no wise disputed, he was riding as an employe of defendant on tbe car, going to bis work from bis home. He was at tbe time one of tbe section bands, engaged in putting in crossties on tbe roadbed of defendant’s track. He was furnished a badge by tbe defendant, which was an insignia of bis employment by it, and which entitled bim to be carried free upon it's cars. He said: “I was riding on my badge tbe day I got hurt, and did not pay any fare. I was riding as an employe or workman for the company.” He also testified “that it was tbe rule of the company to take tbe workman from home to tbe place they went to work, and to take them back, without charging them any fare, and", I being a workman and having my badge, they carried me without making me pay any fare.” - On this state of facts, which, as we have said above, are without dispute, we are constrained to bold that plaintiff was not a passenger, but was in tbe exercise of a mere privilege connected with bis employment. — Wright v. Railroad, 122 N. C. 852 , 29 S. E. 100 ; 6 Cyc. 543, § 4, and cases cited in note; Elliott on R. R. (2d Ed.) § 1578a: Labatt on Master and Servant, pp. 1825-1829, § 624, (b), (c), and notes; Dresser’s Employer’s Liability, p. 75, § 13; Roberts & Wallace Duty and Liability of Employers, p. 183.

*202 It is obvious, for another reason, on the facts stated by plaintiff, that there was no contract, either express or implied, that the relation of carrier and passenger should obtain between him and defendant. Indeed, the presumption that such relation existed between them was affirmative negatived by his testimony. The affirmtive charge, requested by defendant, should have been given.

Reversed and remanded.

Haralson, Simpson, and Denson. JJ., concur