*1
(Cоnstitution
from taxation
of
exempt
here would not be
(Code
VII,
I,
2-5404);
1945, Art.
Sec. Par.
Ann.
Code
IV
§
92-201;
Academy
County
Ann.
Trustees
Richmond
§
of
of
Bohler,
159,
v.
80 Ga.
Church
God
Union
supra;
of
Dalton,
Assembly,
City
Inc. v.
Reversed. C. сoncur. 1972. March Submitted 1972 Decided March Henderson, Henderson, Jr., & John Walton Moffett appellant.
Westmoreland, Warner, Hall & Bryan, Jr., C. Wilbur appellee.
46735. SEABOARD COAST LINE RAILROAD
COMPANY v. THOMAS. *2 February Argued January 24, 1972 1972 Decided Rehearing denied March Pedrick, Pedrick,
Larry E. Wilson G. for appellant. Benjamin Smith, Jr., Wilson, II, Leon A. Floyd E. Thom- as, Memory, Jr., Foster S. for appellee. The defendant Judge. complains that the court
Deen, requested charge: refused its "There rested upon plaintiff to exercise care for his own safety, being just such care as an ordinarily prudent would exercise person same similar under the circumstances. Failure to exer cise negli- would constitute This is of course a gence.” standard instruction in an ordinary negligence action. The court charge that com- mon carriers are liable to their employees injury or in resulting negligence whole from the of the defendаnt; that contributory negligence of the employee recovery will not bar but will proportionately diminish that damages; does not assume the risk of his employment where results in whole or in part defendant; from the of the negligence that defendant was a duty сare, to exercise ordinary being that of care degree which reasonable and pru- dent man would exercise under same or similar cir- cumstances; that failure to exercise degree such of care would be if negligence; plaintiff’s injury was sоlely by caused his own he could not re- cover; is failure to exercise the degree law; care required by that absence of ordinary diligence is termed ordinary negligence; the burden is upon *3 the defendant to provide a reasonably safe рlace employees to and that where causal negligence is partly attributable to the employer to partly the employee, the employee shall recover only a proportional amount the bearing same relatiоn to the full amount the negligence attributable to the carrier bears to the entire attributable to both. that,
It is now well settled simply because a request (Code 70-207) charge Ann. is apt, correct and pertinent, it § is not necessarily error to fail charge it, but thе test is whether the court substantially covered the em principles (Jackson (170 bodied therein State, v. 553, 225 Ga. 561 (176 Young State, 52)) SE2d v. 553, 226 Ga. 556 SE2d or whether it was "sufficiently or substantially covered by (American the general charge” Home Assur. Co. v. Ste (174 phens, 186)). 121 App. This, Ga. SE2d then, will be the critеrion for decision here. In view of the special negligence requirements for recovery in the Federal Em ployers’ Act, Liability this will mean looking to the as a only whole not to determine whether the not, but it was obviously which was given,
material into findings translating negligеnce the rules whether otherwise clarified or have been amounts would monetary the by request. giving 525, 527, it Dixon, 189 F2d Co.
In Atlantic C. L. R. employee of an duty "it of course held that is was safety.” ordinary exercise reasonable McDonald, App. Atlantic L. R. Co. v. In C. 356) not have it held that "it would without charged to have judge for the trial been proper of exer- that a devolved qualification Burkett, In Atlantic C. L. R. Co. v. care.” cising ordinary action of the trial 941, 944, the court affirmed the 192 F2d that both the plain- to the effect refusing judge are employer required tiff and the defendant circumstances, and all the exercise care view of failure to would be the on the of either enter into care. We will not exercise reasonable or none of them the three cases becausе analysis of precise case controlling. each identical so as to be factually is too is, hand, by saying that the court on the one danger the obliter- to reinstate much will the door open name; another on risk doctrine under ated of assumption may the court com- hand, saying enough, not the other an in- railroad is the notion that the defendant municate not. In which employee, surer of 105-603) (see annotated under Code law cases Georgia § have, as to the safety” for his own "ordinary carе words art, and cannot be they almost words of become plaintiff, raising necessity L. A. case without to a F. E. applied risk, its modifica- assumption for a discussion of fuller circumstances, and the further modification tion in these *4 say doctrine. We do not contributory negligence error in this case to have instructed would have been it was harm- say as Neither can we jury exactly requested. and sim- clearly ful to the instruction where the court omit must determine the central issue—that the jury covered ply liti- existed on the of either whether causal and, both, if gant, the plaintiff is entitled to recover that proportion which the defendant’s negligence bears to the whole. Where of risk assumption obtains the whole burden of exercising care for of the employee Wherе, cast him. here, as the doctrine is not available as a defense, the jury may find the employee’s failure to avoid the risk is 99% his him own fault and still award 1% damages, although jury would usually not think of this as being "just such care as an ordinarily prudent person Therefore, would exеrcise.” failure give the request did not constitute reversible error.
The same ruling applies to that part of the defendant’s 4th request which omitted, itas added little or nothing to the statement that the plaintiff cannot negli- recover for gence not provеn.
If the trial court erred in charging: "There is a distinc tion between the term contributory negligence and the term assumption of risk” without going further and defining the difference, the fault lies with the appellant, which re quested the given. Another to charge which defined the two concepts in almost identical language was properly refused.
Objection is made to the refusal
to allow two docu
ments
evidence over objection, both showing that
employee had a prior 10% disability rating based on a ser
vice-connеcted back injury, which statement
the employee
had submitted in connection with his application for em
ployment with the railroad. In a similar case, Caughman v.
Washington
Co.,
Terminal
(2),
345 F2d 434
it was held that
evidence of disability payments from another source was
inadmissible
a F. E. L. A. suit. To the same effect see
Eichel v. N. Y.
Co.,
Central R.
The plaintiff testified to his gross annual
and
salary
the amount
wages
he had lost between the date of the
injury and the
objection
trial. On
the trial court rеfused to
allow cross examination for the purpose of
determining
plaintiff’s
tax,
income
retirement withholding and take-
home
on this
pay
figure.
Atlantic C.
Brown,
L. R. Co. v.
Appliance Act and the Federal Employers’ Liability Act, this court held: "In arriving at its verdict it is of no concern what attorney’s fees, tax, income or other ex- penses might have to be paid out of the recovery. For the court to have charged the jury that any amount awarded the plaintiff would not be subject to Federal income tax would have been improper.” That this general view, is the with some few exceptions, ALR2d, see 63 Anno., p. 1393 et seq. On page 1420 it is stated: "Where defendants’ counsel have sought, cross by examination otherwise, to prove that the gross earnings the plaintiff or the decedent were reduced by amounts withheld for income tax purposes, or were subject to income tax liability, or that any damages awarded to plaintiff would not be subject tax, income has, effort instances, most reported been unsuccessful.” The two issues аre closely interrelated. Georgia having placed itself in the column of those states basing damages for lost wages in personal cases on gross rather than sums, net we find no error the court’s exclusion of the questions to which the sixth enumeration of error is di- rected.
Judgment Quillian and Clark, JJ., Bell, concur. affirmed. J.,C. and Evans, J., concur in the judgment only. Jordan, J., Hall, J., P. Pannell, P. Eberhardt and JJ., dissent. With judgment only. in the Judge, concurring Chief
Bell, disa- I must colleagues, my the views of respect all due the majority opinion in both expressed with those gree Jordan). Deen) (Presiding Judge the dissent and (Judge confusing and is majority Division as written forthright dissent is inaccurate. The large degree decisions facts of this case clear but harshly inaccurate. the F. E. L. A. dissent construing *6 to the that essential guide The court all was charged in- things the court F. E. case. other Among in an L. A. the em- contributory negligence That the jury: structed will proportionately but recovery will not bar ployee that does not assume damages; employee the the diminish results in whole the risk of his where employment if the defendant; that negligence in from of the the negligence caused his own solely was plaintiff’s injury recover; the defendant he could not that the burden a safe reasonably employees to provide place that is attributable negligence pаrtly where causal the shall to the employer partly employee the rela- bearing the same only recover a amount proportional to the the attributable tion to full amount the attributable to both. carrier bears to the entire for thе court to have been erroneous While would not was the charged plaintiff have the defendant’s safety, care his own duty under to exercise the to so charge in of the court failure view of the full A. harmless. F. E. L. case was charge this only. I of affirmancе judgment concur in the only out 3 the judges that with pointed It should be a binding prece- 1 of the is not concurring, opinion Division dent. Judge, dissenting. dissent from Presiding I
Jordan, 1 to the effect holding opinion Division give did err in refusing court not duty exercise safety. care for his own in a F. E. L. A. casе. law, to be the even
I this perceive This was clearly held in Atlantic C. L. R. Dixon, C. v. F2d 527, in which the 5th Circuit Court of Appeals said, "It is of course the of an employee to exercise reasonable and ordinary If safety. employee’s negligence was the solе proximate cause of his injury, he cannot If recover. both employer and employee are guilty of negligence, the employee may recover, but his damages will be diminished in proportion to the amount of negligence attributable emрloyee.” the instant case the trial court correctly charged that contributory neg- ligence of the employee would not recovery bar but would proportionately diminish the damages, and that the em- ployee could recover unless his injury wаs caused solely by his own negligence. These correct charges should have been coupled with the railroad’s request to the effect that employee’s failure to exercise ordinary care for his own safety would amount to negligence on his See part. South- ern R. Cabe, Co. v. App. 438), where we held that a requested charge which required a plaintiff in a F. E. L. A. case to exercise ordinary care for his own safety would have been a correct charge for the except faсt *7 the request objectionable contained language which does not exist in the case here under review.
Appellee’s counsel takes the position once defend- ant’s negligence was proved in that it failed to furnish a safe place for the employee to the employee would then be entitled to recover the full amount of his injury regardless of any on his part. Under this reasoning the employee could blindly and heedlessly place himself in a known position of peril with utter failure to exercise even the slightest care for his own I safety. do not understand this to be the law.
In my opinion defendant was entitled charge, which in connection with the other principles charged, would have correctly instructed the this case. Failure to so instruct amounted to reversible error.
I am authorized to state that Presiding Judge Hall and Judges Eberhardt and Pannell concur in this dissent.