Walker, J.,
after stating the case: It appeared in this case, after the second section of the complaint and the answer thereto, that defendant admitted the authority of E. L. Byrd over the movements of the work train, and that the person in charge of it was subject to his direction and control. This is the purpose of the admission and, it being true, we do not see why the plaintiff was not entitled to have the jury say whether he was rightfully on the train when it collided with the freight train and injured him. In addition to this admission, it appears that the plaintiff, as extra force foreman of that section of the railroad, was, by consent of E. L. Byrd, who, it appears, had the supreme control, permitted him to go to Wükesboro on the Saturday before the col[649]*649lision and come back with bis men on Monday, with tbe promise that be should be returned by train to bis borne at Wilkesboro, where be was accustomed to go, on Monday evening, be having been superseded in bis position as foreman by another man, tbe brother of E. L. Byrd.
Counsel for defendant, in tbe argument, did not coptest bis right to be thus returned to bis home, but relied upon what be claims was a direction to plaintiff that be should go by tbe passenger train, which be bad arranged to take at Abolee, by flagging tbe conductor of that train, so that be would stop at tbe station and take him on. But all these were but questions of fact to be settled by tbe jury, and they have found against tbe defendant.
• We are not disposed to bold that the plaintiff, when riding to Elkin on the work train for tbe purpose of taking the passenger train there for Wilkesboro, was not then in tbe service or employ of tbe defendant. He was in its service when be left Wilkesboro on Monday, because be bad been engaged by E. L. Byrd, tbe supervisor, on tbe Saturday before to come back to Abolee on that day, with tbe promise that be could .return on one of the defendant’s trains to Wilkesboro.
Tbe plaintiff testified: “I thought my job bad terminated that day— was out that day. I was taking my things home when I got hurt, and when I got home I thought I was through with tbe company.” By this he meant, of course, that tbe company bad induced him to return to Abolee Monday with a promise to give him passage in its train to bis home in tbe evening, and that be was still in tbe employ of tbe company until be bad finished bis journey and reached bis home. Tbe defendant, in its brief, says, “Under tbe circumstances, we think undoubtedly tbe defendant owed tbe plaintiff tbe duty to take him back to North Wilkesboro.”
We concur in this opinion, and add that it was so contemplated by tbe parties when plaintiff was ordered back to Abolee on Saturday, and so expressly agreed, according to bis testimony.
It appears that tbe plaintiff was received on tbe work train by Mr. Love, who bad charge of it when it started, and that none of tbe other employees, including Mr. Allen, who claimed to be tbe conductor, objected to his being on tbe train. There is also evidence that it was customary for him to ride on that train. The conductor of tbe passenger train, while willing to carry tbe plaintiff to Wilkesboro and to stop at Abolee on receiving a signal for him, stated that be preferred not to stop for that purpose. Under these circumstances, it was not illegal for him to board tbe work train with Mr. Byrd’s permission. Tbe latter seemed to have full authority to act for tbe company, being in charge at that place, and bis general authority over tbe work train was not [650]*650or at least it cannot be questioned. Everybody appeared to be subordinate to him and subject to Ms orders.
In the case of McNeill v. R. R. Co., 135 N. C., 699, tbe Court said, quoting from Waterbury v. R. R. Co., 17 Fed., 671: “Tbe right wbicb a passenger by railway lias to be carried does not depend on bis having made a contract, but tbe fact of bis being there creates a duty on tbe part of tbe company to carry him safely. It suffices to enable him to maintain an action for negligence if be was being carried by tbe railroad company voluntarily, although gratuitously, and as a mere matter of favor to him.” And again: “A careful examination of tbe evidence shows quite satisfactorily that tbe case did not justify tbe assumption in any aspect of it that tbe plaintiff was entitled to be carried as a- passenger, as an implied condition of tbe contract to carry bis cattle. Tbe most that can be fairly claimed for tbe plaintiff upon tbe evidence is that be was riding upon tbe engine permissively. If be was riding there with tbe consent of tbe defendant, express or implied, it is not material, so far as it affects tbe defendant’s liability for negligence, whether be was there as a matter of right or as a matter of favor, as a passenger or a mere licensee. It suffices to enable him to maintain an action for negligence if be was being carried by the defendant voluntarily. If tbe defendant undertook to carry him, although gratuitously and as a mere •matter of favor to himself, it was obligated to exercise due care for bis safety in performing tbe undertaking it bad voluntarily assumed,” citing R. R. Co. v. Derby, 14 How., 468; Steamboat Co. v. King, 16 How., 469.
There are other authorities cited in McNeill v. R. R. Co., supra, which are applicable to this case, and we refer to them generally and without doing so by their names.
It is said in 4 Ruling Case Law, at sec. 589: “A common carrier providing sufficient means for tbe accommodation of its passenger traffic is under no obligation to receive and transport persons on other than its regular passenger vehicles, yet if it does so, it assumes toward them tbe same duties and must exercise tbe same care, so far as tbe means of transportation permit, wbicb would be due them if they were traveling on a conveyance regularly intended for passengers, and tbe passenger assumes only such risks as are necessarily incident to tbe character of tbe conveyance and tbe purpose for wbicb it is being operated. This rule has been frequently applied in tbe ease of persons transported on freight or mixed trains, special trains, construction trains, and logging railroads.” And at sec. 593, it is said: “There are also decisions making a distinction in tbe degree of care required towards regular passengers and as to persons being transported on tbe vehicle of a carrier, who [651]*651while not regular passengers are yet not trespassers, as, for instance, in the case of one permitted to ride without payment of fare upon a conveyance not devoted to the carriage of passengers, and holding that as to such persons the carrier is required to use only ordinary care, and' is not liable for slight negligence.”
This accords somewhat with what is held in McNeill’s case, supra; but we need not endorse or approve this principle, or even discuss it, for in this case it is apparent that there was not only gross negligence in the operation of the train, but even a degree of recklessness which may have amounted to wantonness, as defined in 8 Words and Phrases, at p. 7386. These are some of the meanings of that word, as stated by the courts: “Wantonness is a course of action, or of conduct, taken without regard to the rights of others.” Everett v. Receivers, 121 N. C., 519; S. v. Brigman, 94 N. C., 888, 889; Welch v. Durand, 36 Conn., 182, 184. “It is conduct willful or unrestrained action, or running immoderately into excess.” Cobb v. Bennelt, 75 Pa., 326, 330; K. P. Ry. Co. v. Whipple, 39 Kans., 531.
Free access — add to your briefcase to read the full text and ask questions with AI
Walker, J.,
after stating the case: It appeared in this case, after the second section of the complaint and the answer thereto, that defendant admitted the authority of E. L. Byrd over the movements of the work train, and that the person in charge of it was subject to his direction and control. This is the purpose of the admission and, it being true, we do not see why the plaintiff was not entitled to have the jury say whether he was rightfully on the train when it collided with the freight train and injured him. In addition to this admission, it appears that the plaintiff, as extra force foreman of that section of the railroad, was, by consent of E. L. Byrd, who, it appears, had the supreme control, permitted him to go to Wükesboro on the Saturday before the col[649]*649lision and come back with bis men on Monday, with tbe promise that be should be returned by train to bis borne at Wilkesboro, where be was accustomed to go, on Monday evening, be having been superseded in bis position as foreman by another man, tbe brother of E. L. Byrd.
Counsel for defendant, in tbe argument, did not coptest bis right to be thus returned to bis home, but relied upon what be claims was a direction to plaintiff that be should go by tbe passenger train, which be bad arranged to take at Abolee, by flagging tbe conductor of that train, so that be would stop at tbe station and take him on. But all these were but questions of fact to be settled by tbe jury, and they have found against tbe defendant.
• We are not disposed to bold that the plaintiff, when riding to Elkin on the work train for tbe purpose of taking the passenger train there for Wilkesboro, was not then in tbe service or employ of tbe defendant. He was in its service when be left Wilkesboro on Monday, because be bad been engaged by E. L. Byrd, tbe supervisor, on tbe Saturday before to come back to Abolee on that day, with tbe promise that be could .return on one of the defendant’s trains to Wilkesboro.
Tbe plaintiff testified: “I thought my job bad terminated that day— was out that day. I was taking my things home when I got hurt, and when I got home I thought I was through with tbe company.” By this he meant, of course, that tbe company bad induced him to return to Abolee Monday with a promise to give him passage in its train to bis home in tbe evening, and that be was still in tbe employ of tbe company until be bad finished bis journey and reached bis home. Tbe defendant, in its brief, says, “Under tbe circumstances, we think undoubtedly tbe defendant owed tbe plaintiff tbe duty to take him back to North Wilkesboro.”
We concur in this opinion, and add that it was so contemplated by tbe parties when plaintiff was ordered back to Abolee on Saturday, and so expressly agreed, according to bis testimony.
It appears that tbe plaintiff was received on tbe work train by Mr. Love, who bad charge of it when it started, and that none of tbe other employees, including Mr. Allen, who claimed to be tbe conductor, objected to his being on tbe train. There is also evidence that it was customary for him to ride on that train. The conductor of tbe passenger train, while willing to carry tbe plaintiff to Wilkesboro and to stop at Abolee on receiving a signal for him, stated that be preferred not to stop for that purpose. Under these circumstances, it was not illegal for him to board tbe work train with Mr. Byrd’s permission. Tbe latter seemed to have full authority to act for tbe company, being in charge at that place, and bis general authority over tbe work train was not [650]*650or at least it cannot be questioned. Everybody appeared to be subordinate to him and subject to Ms orders.
In the case of McNeill v. R. R. Co., 135 N. C., 699, tbe Court said, quoting from Waterbury v. R. R. Co., 17 Fed., 671: “Tbe right wbicb a passenger by railway lias to be carried does not depend on bis having made a contract, but tbe fact of bis being there creates a duty on tbe part of tbe company to carry him safely. It suffices to enable him to maintain an action for negligence if be was being carried by tbe railroad company voluntarily, although gratuitously, and as a mere matter of favor to him.” And again: “A careful examination of tbe evidence shows quite satisfactorily that tbe case did not justify tbe assumption in any aspect of it that tbe plaintiff was entitled to be carried as a- passenger, as an implied condition of tbe contract to carry bis cattle. Tbe most that can be fairly claimed for tbe plaintiff upon tbe evidence is that be was riding upon tbe engine permissively. If be was riding there with tbe consent of tbe defendant, express or implied, it is not material, so far as it affects tbe defendant’s liability for negligence, whether be was there as a matter of right or as a matter of favor, as a passenger or a mere licensee. It suffices to enable him to maintain an action for negligence if be was being carried by the defendant voluntarily. If tbe defendant undertook to carry him, although gratuitously and as a mere •matter of favor to himself, it was obligated to exercise due care for bis safety in performing tbe undertaking it bad voluntarily assumed,” citing R. R. Co. v. Derby, 14 How., 468; Steamboat Co. v. King, 16 How., 469.
There are other authorities cited in McNeill v. R. R. Co., supra, which are applicable to this case, and we refer to them generally and without doing so by their names.
It is said in 4 Ruling Case Law, at sec. 589: “A common carrier providing sufficient means for tbe accommodation of its passenger traffic is under no obligation to receive and transport persons on other than its regular passenger vehicles, yet if it does so, it assumes toward them tbe same duties and must exercise tbe same care, so far as tbe means of transportation permit, wbicb would be due them if they were traveling on a conveyance regularly intended for passengers, and tbe passenger assumes only such risks as are necessarily incident to tbe character of tbe conveyance and tbe purpose for wbicb it is being operated. This rule has been frequently applied in tbe ease of persons transported on freight or mixed trains, special trains, construction trains, and logging railroads.” And at sec. 593, it is said: “There are also decisions making a distinction in tbe degree of care required towards regular passengers and as to persons being transported on tbe vehicle of a carrier, who [651]*651while not regular passengers are yet not trespassers, as, for instance, in the case of one permitted to ride without payment of fare upon a conveyance not devoted to the carriage of passengers, and holding that as to such persons the carrier is required to use only ordinary care, and' is not liable for slight negligence.”
This accords somewhat with what is held in McNeill’s case, supra; but we need not endorse or approve this principle, or even discuss it, for in this case it is apparent that there was not only gross negligence in the operation of the train, but even a degree of recklessness which may have amounted to wantonness, as defined in 8 Words and Phrases, at p. 7386. These are some of the meanings of that word, as stated by the courts: “Wantonness is a course of action, or of conduct, taken without regard to the rights of others.” Everett v. Receivers, 121 N. C., 519; S. v. Brigman, 94 N. C., 888, 889; Welch v. Durand, 36 Conn., 182, 184. “It is conduct willful or unrestrained action, or running immoderately into excess.” Cobb v. Bennelt, 75 Pa., 326, 330; K. P. Ry. Co. v. Whipple, 39 Kans., 531. It is that degree of recklessness, with a conscious knowledge of its probable harmful consequence, which, in law, finds its equivalent in willful or intentional wrong. B. S. Ry. Co. v. Powell, 136 Ala., 232. It is the conscious and intentional failure by one charged with a duty to exercise due care and diligence to prevent injury after the discovery of peril, or under circumstances where he is charged with the knowledge of such peril and being conscious of the inevitable or. probable results of' such a failure. Birmingham R. & E. Co. v. Pinckard, 124 Ala., 372. It is a reckless disregard of the'rights df others where serious damages may ensue. W. U. Tel. Co. v. Lawson, 66 Kan., 660.
We need not go to the length of holding, in order to dispose of this case, that the conductor of the defendant’s employees in charge of this train and those in charge of the freight train was wanton. There was a gross inattention to duty, such as- would in all probability result in very serious injury to the persons on the train, including the plaintiff.
The case in some of its salient features is not, unlike B. S. Railroad Co. v. Powell, 136 Ala., 232; St. Joseph, etc., R. Co. v. Wheeler, 35 Kan., 185; Kansas City R. Co. v. Berry, 53 Kan., 112. The train was running in violation of a statute and in a reckless manner, and, without the aid of the statute, the conduct of those in charge of the train was not only negligent, but grossly so. The rule as to the degree of care to be exercised towards a person in a freight or construction train was stated in Wallace v. R. R. Co., 98 N. C., 494; Marable v. R. R. Co., 142 N. C., 557; Usury v. Watkins, 152 N. C., 760.
The Court in Wallace v. R. R. Co., supra, at p. 498, said: “A ‘caboose’ [652]*652attached to a freight train does not furnish all the appliances and conveniences for the safety and comfort of passengers that are provided for passenger trains, and while it is the duty of the company carrying passengers on such a train to exercise every reasonable care and take every precaution against injury or danger to the life of such passengers which the appliances for that mode of transportation will admit of, it is also the duty of the passenger who travels on such a train with a full knowledge of the increased risk incidental thereto to be correspondingly careful in guarding against injury by reason of the risk incidental to such mode of travel. An act may be negligent or not, according to the attendant circumstances.”
The above eases sustain the judge’s charge as to the degree of care, and it was not at all unfavorable to the defendant. The two trains were practically without any lights or other safeguards, and this fact is what caused the collision with its fatal result.
This case is not like Vassor v. R. R. Co., 142 N. C., 68, or Peterson v. R. R. Co., 143 N. C., 260, for here it was part of the contract made on the Saturday before that the plaintiff should be returned to his home at Wilkesboro by the defendant’s train, which formed a contractual relation between him and the company, and it was the officer who, with the requisite authority, made the contract with plaintiff for the company, who directed him to ride in the caboose and told the conductor to receive him on his train. The learned judge, therefore, was not in error when he required of the defendant the exercise of ordinary care toward the plaintiff in the operation of the train. The latter was surely entitled to such a degree of care and diligence.
After a thorough review of the case, we find no error that was committed in the court below.
No error.