30 Ga. App. 770 | Ga. Ct. App. | 1923
J. W. Goens, as administrator of the estate of John Clifford Goens, sued the Central of Georgia Bailway Company-under the Federal employer’s liability act, for' damages for the homicide of'‘his intestate. Defendant filed general and special demurrers, and pleaded obvious danger and assumption of risk. The court overruled each and all of the demurrers to the petition ás amended, and the jury rendered a verdict for $7,500. Defendant excepts to the overruling of its demurrers, and of its motion for a new trial. ■
So far as is material to a determination of this case, the petition as amended is as follows: (1) J. W. Goens is the duly appointed administrator of the estate of deceased. (2) Defendant is a corporation under the laws of Georgia with an' office and ’ place of business in Sumter county, Ga. (3) Defendant is a common carrier owning and operating a line of railroad through Sumter county, Ga., having a depot and yard in Amerieus, Ga., and operating, a switch-engine on said yard. (4) Defendant’s side-track in said yard branches off from the east side of the main line several hundred yards north of McGarrah St., and runs almost' due south across said street and up a sharp grade to tracks west of the warehouse of Glover Grocery Company and Amerieus Grocery Company. (5) On and prior to October 6, 1920, deceased was employed by defendant as a .switchman in its yards at Amerieus, and as such it wras his duty to accompany the switch-engine, couple cars, change switches, and assist in placing cars to be loaded and unloaded in and about defendant’s yards at Amerieus. (6) About eleven-o’clock on the night of October 6, 1920, the switch-engine was on the part of the side-track described in paragraph 4 of the petition, north of McGarrah street, in the act of pushing three loaded cars ahead,of it, due south, across said street and placing them on the side-track south of said street and west of said warehouse. Deceased was at his usual place of work accompanying said switch-engine and walking beside the moving cars about two and
The grounds of the general demurrer may be grouped as follows: (1) No sufficient jurisdictional allegations. (2) No cause of action set forth. (3) The allegations of the petition show that the injury was due to a risk voluntarily assumed by deceased. The petition set forth a cause of action, and the court did not err in overruling the general demurrer. The Federal employer’s liability act supersedes all State law in the matter of the employer’s liability in interstate transportation by rail (Seaboard Air-Line Ry. Co. v. Horton, 233 U. S. 492 (3), 34 Sup. Ct. 635, 58 L. ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475), and all matters of substance are controlled by the Federal law. Central Vermont Ry. Co. v. White, 238 U. S. 507 (4) (35 Sup. Ct. 865, 59 L. ed. 1433, Ann. Cas. 1916B, 252). Under this act, “except generally as to violations of the Federal statute for the protection of employees, assumption of risk is an absolute defense, while contributory negligence merely reduces the damages.” Charleston &c. Ry. Co. v. Sylvester, 17 Ga. App. 85 (86 S. E. 275), citing Horton ease supra. “ Contributory negligence is the omission of the employee to use those precautions for his own safety which ordinary prudence requires,” while “ an employee assumes the ordinary risks and hazards of his occupation, and also those defects and risks which are known to him, or which are plainly observable, although due to the master’s negligence.” Sylvester case, supra, citing Schlemmer v. Buffalo Railroad, 220 U. S. 590 (31 Sup. Ct. 561, 55 L. ed. 596). It can not be concluded from the allegations of the petition that the danger incident to the arch-brick and clinkers was “an ordinary risk ” of deceased’s employment, or that they were known to him or were plainly observable, and the jurisdictional allegations are sufficient. The petition was good as against the general demurrer.
Taking up seriatim the objections raised by the special demurrer, ground 7, that paragraph 5 of the petition is defective in that it failed to set out when deceased was employed by defendant, or how long he had been so employed, is without merit. Swift Spinning Mills v. Crouch, 23 Ga. App. 702 (99 S. E. 223). The
The first ground of the amendment to the motion for a new trial complains that the court allowed plaintiff to' introduce in evidence a plea filed by defendant in the previous suit of “ J. W. Goens and Estelle Goens v. Central of Georgia Railway,” which alleged that deceased at the time of his injury and death was employed in interstate commerce, and that the rights and liabilities of the parties were fixed and controlled by the Federal employer’s liability act, the objection being that the plea involved different issues and different parties. After plaintiff’s attorney had stated, “it’s the same incident and the same parties,” the plea was admitted. The plea was properly allowed in evidence. Printup v. Patton, 91 Ga. 422 (18 S. E. 311); McTyer v. Stearns, 142 Ga. 850 (83 S. E. 955). The headnote in the former case, adopted as a headnote in the case at bar, sustains this view.
The second and third grounds of the amendment to the motion .for a new trial were abandoned.
The fourth ground contends that the court erred in allowing the mortality tables to be introduced, over the objection that they were illegal and immaterial and had no reference to any issue in the case. These tables were clearly admissible. The ages of the deceased and J. W. Goens were proved, and the jury had the right
The fifth ground complains of the court’s charge upon “ conscious pain.” In the absence of a request to charge, the court’s charge was abstractly correct. The contention that the evidence did not warrant the charge is more difficult of solution. In the case of St. Louis, Iron Mountain & So. Ry. Co. v. Craft, 237 U. S. 647 (supra), where a father sought a recovery under the Federal act, the deceased lived half an hour after a car had passed partly over his body, broken his bones, opened his abdomen, and pinned his body to the ground. The court held that the evidence warranted a recovery for pain and suffering (there being evidence that he was groaning once and a while, and that he would.raise his arm and try to pull himself out), but, after stating that the case was close to the border line, laid down the rule in such cases as follows (p. 655) : “.Such pain and suffering as are substantially contemporaneous with death or mere incidents to it, as also the short periods of insensibility which sometimes intervene between fatal injuries and death, afford no basis for a separate estimation or award of damages ” under the act of Congress of April 5, 1910. The evidence in the case at bar indicates that deceased stumbled over an arch-brick, and then over a pile of clinkers, fell against the side of a box-car, was struck by a projection from, the side of the car, knocked under the rear truck of the ear, dragged a distance “as far~as from here to the back side of the court-house to where parts of his body was found.” “ The body was scattered all along. It was on the car and all up and down the track. There was blood underneath tlie cars, on the brakebeam.” Another witness swore: “ He was mangled up and lay by the track, and one leg was cut off and his body pretty badly cut up. The body wasn’t far from the clinkers.” Another witness testified: “He had been killed not over five minutes before I got to where his body was.” The facts of this ease make it “ close to the border linestill we think it was a jury question whether deceased lived long enough after he was hurt to suffer conscious pain and suffering, and the court was correct in submitting this question to the jury for them to work out,under all the evidence in the case.
No reversible error is shown by grounds 6 and 7 in certain ex
For the reason pointed out, it was error to overrule the motion for a new trial.
Judgment reversed.