Jackson v. Western & Atlantic Railroad

Evans, P. J. (After stating the foregoing facts.) Some of the grounds of special demurrer were properly sustained. ■ Others, directed to allegations which denominated as negligence certain pleaded facts, should have been overruled; but as the effect of the judgment sustaining such demurrer did not materially alter the plaintiff’s ease as laid, a reversal of the judgment is not required, under the view we take of the case in its entirety. The rulings ' on special demurrer appear in the first, second, and third notes of the syllabus, and do not require further discussion. The plaintiff alleged that her husband was riding upon the train by permission of those in charge of it, under a custom of the railroad companies; but she failed to introduce any testimony on that subject. The evidence authorized an inference that the plaintiff’s husband was killed while riding on a freight-train of the Louisville and Nashville Eailroad Company. He was not an employee of that company. He was a bare trespasser upon its [154] train. In the absence of any custom or rule permitting freight-trains to carry passengers, the presumption is that one riding for his own convenience on a freight-train not designed for the transportation of passengers is unlawfully there and is a trespasser. The railroad company owed no duty to safely transport a trespasser riding on its freight-train without the permission of the railroad authorities; the only duty it owed him was not to wantonly injure him. Morris v. Georgia Railroad &c. Co., 131 Ga. 475 (62 S. E. 579); Smith v. Georgia Railroad, &c. Co., 113 Ga. 9 (38 S. E. 330); DeVane v. Atlanta, Birmingham & Atlantic Railroad Co., 4 Ga. App. 136 (60 S. E. 1079). The evidence was insufficient to show that the plaintiff’s husband came to his death by any wanton act of the railroad company. It follows that the grant of a nonsuit was inevitable. Judgment affirmed. All the Justices concur.