56 Ga. App. 232 | Ga. Ct. App. | 1937
Lead Opinion
Mrs. Esther Blanton as administratrix of her deceased husband, Will Blanton (hereinafter referred to as the decedent), brought this action against Southern Railway Company, to recover damages for his homicide. The petition is in two counts. The questions for determination are (1) whether the judge erred in overruling general and special demurrers to the petition as amended, and (2) whether he erred in overruling the motion for new trial.
By paragraph, the material parts of the first count are substantially as follows: (3) On April 29, 1935, the decedent was working as a brakeman on the defendant’s freight-train, both the décedent and the defendant being engaged in interstate commerce. (4) At 11:20 a. m. on said date, while the decedent was engaged as a brakeman on a freight-train in Bremen, Haralson County, Georgia, he was struck, mashed, and fatally injured in
(15) The defendant was negligent in that said train was so operated that it approached and cut off decedent’s opportunity to retreat from the path of said automobile, and caused decedent to be caught between said train and said automobile. (16) If said train had stopped or had slowed its speed, decedent could have stepped from the path of said automobile even after it turned its course, and have been saved; and the defendant was negligent in that it failed to stop the train or to slow its movements before it reached said crossing. (17) Said automobile was traveling straight down the highway; and had said train stopped when decedent began waving to said automobile, said automobile would have passed said crossing without colliding, either with the train or with decedent; and defendant was negligent in not stopping said train when the engineer and fireman in charge of said train saw or in the exercise of ordinary care should have seen decedent waving his hand in such manner as to indicate danger from ap
Otherwise than as already indicated, the first count of the petition was amended substantially as follows: (1) After the decedent “swung to the ground from said train backing at a speed of from six to eight miles per hour, . . and when said train was within twenty to thirty yards of said crossing, he ran ahead to said public street and instantly began vigorously and frantically waving his hands up and clown in the direction from which said automobile was approaching, in an effort to stop” it. When he reached the pavement and “began to wave his hands to said automobile he was fifteen to thirty feet or more in advance of the rear end of said train, and was in full view of said engineer. . . Said engineer in the exercise of ordinary care should have seen said Blanton and . . stopped said train, and defendant was negligent in that said engineer did not take note of the danger indicated by . . signaling, . . and in that he did not stop said train. Said train, at the speed it was going, . . could have ■ been stopped . . before the rear end reached the pavement of said street.” (2) When the engineer saw or should have seen that there was no watchman at said crossing, and that no other employee of the defendant was there at said time, “it was his duty to slow down or stop said engine so as to allow sufficient
In its answer the defendant admitted that both it and the decedent were engaged in interstate commerce, denied any negligence on its part, and pleaded “assumption of risks,” and that the negligence of the driver of the automobile was the proximate cause of Blanton’s death.
We shall now consider the demurrers to the first count as amended. The first two paragraphs of the demurrer are strictly general, the first averring that the count “sets forth no cause of action against the defendant,” and the second that “the averments of fact . . are insufficient to show any negligence on the part of this defendant or any of its agents or employees, causing or contributing to the death of the decedent.” Mrs. Blanton as administratrix had the right to bring the present action. 45 U. S. C. A., § 51. “The fact that the employee may have been guilty of contributory negligence shall not bar a recover}^ but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee.” § 53. “In any action brought against any common carrier under or by virtue of any provision of this chapter to recover damages for injuries to, or the death of, any of its employees, such employee shall not be held to have assumed the risks of his employment in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee.” § 54. Of course the Federal law is controlling in this case. Central of Ga. Ry. Co. v. Goens, 30 Ga. App. 770, 773 (119 S. E. 669), and cit. “In a suit brought under the Federal ‘employer’s liability act,’ except generally as to violations of Federal statutes for the protection of employees, assumption of risk is an absolute defense, while contributory negligence merely reduces the damages. . . As construed by the
We quote next from Montgomery v. Baltimore & Ohio R. Co., 22 Fed. (2d) 359, 360: “If the starting of the engine without the bell was not negligent, there was no case. If it was, we can not say that plaintiff assumed the risk. His contract of assumption does not reach risks arising from the non-customary, unknown, and not to be anticipated negligence of a fellow servant.” In answering a certified question from this court, the Supreme Court, in L. & N. R. Co. v. Hood, 149 Ga. 829 (102 S. E. 521), said: “‘The statute contains three propositions which stand out
The rule governing general demurrers where questions of negligence are involved is well stated in Central of Ga. Ry. Co. v. Hartley, 25 Ga. App. 110 (103 S. E. 259), as follows: “Ordinarily, issues relating to negligence, including contributory negligence . . are questions which lie peculiarly within the province of the.
The evidence is insufficient to support a verdict against the railroad company. Substantially three questions are presented for decision: (.1) Was the jury authorized to find that the engineer of the defendant was negligent in failing to stop his train before the deceased had flagged the crossing and before receiving a signal from him to proceed? (2) Was the jury authorized to find that the defendant was negligent in that its engineer should have stopped his train before reaching the crossing, after seeing the deceased flagging an approaching automobile? (3) Was the jury authorized to find that the defendant was negligent in continuing to operate its train after the accident? The train on which the deceased was working consisted of an engine and two cars, and immediately before the accident it was backing toward the crossing at about six to eight miles per hour. The deceased, the engineer, and the fireman were the only employees on the train. It appeared from the evidence that the movements of
It is recognized by this court that ordinarily questions of negligence are for determination by the jury. However, where, taking the facts most favorably to the plaintiff, it is apparent that the defendant was guilty of no breach of duty owed to the deceased, this court may, and often has, decided the question of negligence as a matter of law. It is inferable from the evidence that the deceased had given the signal to the engineer to approach the crossing; and there is no evidence as to any custom or rule re
Judgment reversed.
Dissenting Opinion
dissenting. I agree with the majority that the judge properly overruled the demurrers to both counts of the petition, but am of the opinion that the liability of the defendant was a jury question. T. II. Sheridan testified, in part: “I am a former locomotive engineer. I was employed as a locomotive engineer around forty-five years. I have had experience in practically all kinds of locomotives and -all kinds of operations of trains. If a train is traveling at six or eight miles per hour, and in the train is the engine and tender and two empty box-cars, and it is traveling on practically a level track, by using the brake in emergency it ought to be stopped in about six or eight feet.” Hoyt