Fretwell v. Seaboard Air-Line Railway , 5 Ga. App. 532 ( 1909 )

Russell, J.

A railroad company is not required to use extraordinary diligence for the safety of one who boards a train at a regular station, without having made any effort to procure a ticket, and who, after entering the car, does not inform any of the carrier’s servants as ito the point to which he desires to be carried, and neither offers to pay his fare nor in any other way calls the attention of the conductor or any other servant of the carrier in charge of the train to his presence, and who only intends to ride to a street-crossing in the city in which, he entered the train, at which crossing the particular train is not accustomed to stop, and who, without notifying any of the train crew of his intention to leave the train and without asking that it be slowed, attempts to alight therefrom at such a street-crossing. If, in the effort to alight, such a. one is injured by a sudden jerk or quickening of the speed of the train, no action for the injury can be maintained against the carrier, unless it appears that the carrier’s servants in charge of the train, or some one of them, knew of his presence on the train and his desire to stop at the point in question, or unless it appears that (though those in charge of the train were previously ignorant of his presence) the employees of the train, after becoming aware of his danger, either failed to use ordinary care for his safety, or wantonly or maliciously and wilfully inflicted an injury upon him. There being in the present case no evidence showing that the servants of the defendant were aware of the plaintiff’s presence upon the train or of his desire to alight at the Simpson-street crossing, a nonsuit was properly awarded; and the correctness of the judgment is not affected by the fact that the carrier may have discharged passengers at this point from other trains, or that employees ■ of the company may have been permitted to alight from the particular train on which the plaintiff was riding, upon other occasions, when the train was running more slowly. There was no evidence that the point where he desired to alight was a station where passengers were received or discharged from trains. Judgment affirmed.

Action for damages, from city court of Atlanta — Judge Calhoun. April 2, 1908.

Argued July 16, 1908. Decided February 9, 1909. Burton Smith, for plaintiff. Brown & Randolph, for defendant.