139 Ga. 549 | Ga. | 1913
The action was by Lillian D. Hill as administratrix of William H. Hill, against the Southern Railway Company, to recover damages for the alleged wrongful death of her intestate, who at the time of his death was an engineer in the service of the defendant. The petition contained three counts, and the case was tried on that count which predicated liability on the act of Congress of 1908 (35 Stat. 65), commonly known as the Federal employer’s liability act. The deceased employee left a widow, and three children. He was instantly killed, and his death was caused by his engine being overturned-by a derail switch, as a result of the alleged negligence of the defendant. A verdict was returned for the plaintiff, and the court refused to set it aside on motion for new trial made by the defendant.
The doctrine of comparative negligence was unknown to the common law. Courts of admiralty refused to follow the common-law rule that the injured party’s contributory negligence barred a recovery, and applied the rule that where, in the case of collision of two vessels, both are at fault, though not in equal degree, the loss will not be allowed to fall solely upon one, but the damages will be apportioned between them as to the comparative degree of fault of each. 1 Thompson on' Negligence, § 286. It is quite evident that the act of Congress was intended to break away from the harsh rulé of the common law, and adopt a more equitable plan in the distribution of damages caused by the mutual negligence of the parties. The statute allows a recovery “for such injury or death resulting in whole or in part from the negligence of the officers, agents, or employees of the carrier,” and provides that “the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be. diminished by the jury in proportion to the amount of negligence attributable to such employee.” The statute contains three propositions which stand out in bold relief: the first is, that a carrier is liable for the injury or death of an employee resulting in part from the carrier’s negligence; secondly, the employee’s contributory negligence does not cut off the right of action; and, thirdly, there is to be a diminution of damages in proportion to the employee’s negligence. It would seem that the clear intent of Congress was to allow some damages for every injury or death caused by the carrier’s negligence; to adopt an approximation of the rule of the admiralty courts. The Georgia statute respecting an apportionment of damages in eases of mutual negligence, though somewhat similar, has received a construction different from that we give to the congressional act. It'has been construed to mean that where the injury is the result of mutual negligence, there can be no recovery unless the person inflicting the injury is more in fault than the one who is injured. This' construction was reached in order to harmonize several cognate sections of the Civil Code. The act of Congress
Judgment reversed.