Crine v. East Tennessee, Virginia & Georgia Railway Co.

Blandford, Justice. A verdict having been rendered in this case in favor of the defendant in error, the plaintiff in error moved for a new trial upon several grounds, alleging as error certain charges of the court, which are set forth in the official report of this case, the substance of the same being that the court erred in instructing the jury as fol [657] lows: A man who voluntarily takes passage upon a train which is not a passenger-train, but only an ordinary freight-train, is only entitled to look for such security as that mode of conveyance is reasonably expected to render. In that case, if he receives an injury while he is seated inside of the cab, and such injury is caused by a jolt or a jar such as is usual and necessary in coupling the cars of a freight-train, he cannot recover. "When a passenger-train is provided for the transportation of passengers on a railway, and one voluntarily takes passage on a freight-train rather than wait for the passenger-train, a railway company would not be liable to him for injuries received from a jolt or jar in the coupling of their ears, if it was such as was usual and necessary, the burden being upon the railroad to establish the necessity of the same. If, notwithstanding the exercise of extraordinary diligence on the part of the railway company, such injury resulted, the plaintifi would not be entitled to recover. But unless such diligence was established on their part, if the plaintifi received injuries in consequence of the negligent acts of the defendant described in the.declaration, he would be entitled to recover. And further, that the jury were authorized to inquire whether it was such an injury as might reasonably be expected to occur under the circumstances ; and if they found that such injury was reasonably to be expected, then it was the duty of the company to carefully guard against á jolt in coupling the cars which would produce such an injury. But if, on the contrary, it was an injury of á character never before-known to occur, and therefore not an injury which might' reasonably have been expected under the circumstances ; and if in coupling and uncoupling, the machinery was handled as machinery of like character would be handled by a prudent and thoughtful person in the exercise of extreme care and caution, and the jolt [658] was no greater than the jolt usual under such circumstances, then, even if the plaintiff was injured thereby, the jury would be authorized to find for the defendant. We think, under the facts in this case, that this was a fair charge and presented the. law correctly. The plaintiff in error took passage upon a freight-train rather than wait a few hours for the regular passenger-train. He was entitled to no accommodations other than those which are usually provided on a freight-train; audit must be presumed that he intended to risk any jolts and jars that might occur on such a train which were not caused by the negligence of the agents of the railroad company, but were usual and consequent upon such mode of traveling. The argument submitted by the able counsel for the defendant in error is, to our mind, unanswerable; and we are satisfied that the injury, if any injury was sustained by the plaintiff in error, was without fault or negligence on the part of the defendant company or its agents. Judgment affirmed.