170 Ga. 208 | Ga. | 1930
Josephine Lochridge as administratrix of the estate of her deceased husband, John Lochridge, instituted an action against the Western and Atlantic Bailroad for the homicide of her intestate. The petition was in two counts, one under the State law and the other under the Federal employer’s liability act. The first count was abandoned, and the ease was tried under the second
The Court of Appeals ruled: “The death of a fireman in a collision of trains may be found to have resulted in part from the negligence of other employees, within the meaning of the Federal employer’s liability act, where but for the negligence of the conductor and engineer who were in charge of one of the trains, and under whom the fireman was working, the collision would not have occurred, notwithstanding the fireman may have participated with the others in the acts or omissions from which' it resulted.” Error was assigned upon this ruling, “because it appeared from the evidence in the instant cause that the fireman not only participated with the conductor and engineer in the acts or omissions from which the collision occurred, but that the preponderance of evidence was that the fireman failed to discharge duties with which he was specially chargeable, and neglected to observe rules of his em
In Union Pacific Railroad Co. v. Hadley, 246 U. S. 330 (38 Sup. Ct. 318, 62 L. ed. 751),' it Avas held: “The fact that a brakeman, who was killed by a rear-end collision while in the caboose of a standing train, would have escaped if he had been at his post to give warning, as his duty required, does not make Ms neglect the only proximate cause of his death, if the collision Avas due also to negligent operation of the train coming from behind.” In Illinois Central Railroad Co. v. Skaggs, 240 U. S. 66 (36 Sup. Ct. 249, 60 L. ed. 528), the plaintiff Skaggs was held entitled to recover for injury received Avhile acting as brakeman in conjunction Avith another brakeman in switching a train. It Avas said in the opinion :
In Davis v. Kennedy, 266 U. S. 147 (45 Sup. Ct. 33, 69 L. ed. 212), it was held: “Where a railway collision, killing an engineer, was directly due to neglect of his personal duty not to move his train forward without positively ascertaining that another train had passed, the possibility that the accident might have been pre
The Court of Appeals ruled: “The burden of establishing the defense of assumption of risk rests upon the railroad company, and can not be held to have been sustained as a matter of law, except where the evidence to show such assumption is clear and uncontradicted. The evidence in the present case did not measure-up to this standard, and the question was one for the jury.” Error was assigned upon this ruling, on the ground that it clearly appeared from the uncontradicted evidence that there was such assumption of risk on the part of Lochridge, the fireman, as should defeat a recovery in this cause. The language of the statute (45 USCA. § 54) is, in part: “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.” In an action brought under the statute, the common-law defense of assumption of risk is open to the defendant, except where it is shown that the company violated a Federal statute passed for the protection of the employees. Seaboard Air-Line Railway v. Moore, 228 U. S. 433 (33 Sup. Ct. 580, 57 L. ed. 907); Seaboard Air-Line Railway v. Horton, 233 U. S. 492 (34 Sup. Ct. 635, 58 L. ed. 1062); Southern Railway Co. v. Crockett, 234 U. S. 725 (34 Sup. Ct. 897, 58 L. ed. 1564); Jacobs v. Southern Railway Co., 241 U. S. 229 (36 Sup. Ct. 588, 60 L. ed. 970). In McFarland v. Chesapeake & O. Ry. Co., 177 Ky. 551 (197 S. W. 944), it was held: “The assumption of risk is a rule of the common law, and is based on contract, and, by implication, on a servant’s act in voluntarily exposing himself to danger.” This principle was recognized in Central of Ga. Ry. Co. v. Allen, 140 Ga. 333 (78 S. E. 1052), and cit. In Pennsylvania Co. v. Stalker, 67 Ind. 329 (119 N. E. 163), it was held: “Being contractual in its origin and nature, assumption of risk will not arise by implication of law from a perilous situation suddenly created.” In Boldt v. Pennsylvania Railroad Co., 245 U. S. 441 (38 Sup. Ct. 139, 62 L. ed. 385), it was held: ’“Under the Federal employers’ liability act, except in the cases
In Chesapeake & Ohio Railway Co. v. Nixon, 271 U. S. 218 (46 Sup. Ct. 495, 70 L. ed. 914), a railroad section foreman, one of whose duties was to go over and inspect the track and keep it in repair, was held to have assumed the risk of being run down by a train while going to his work over a part of the track that was in his charge, riding (by permission of a superior) the railway velocipede which he used in track inspections. It was said in the opinion: “The deceased was an experienced section foreman upon the defendant’s road. One of Ms duties was to go over and examine the track and to keep it in proper repair. When inspecting the track he used a three-wheeled velocipede that fitted the rails and was propelled by the feet of the user. He had obtained from his immediate superior, the supervisor of track, leave to use the machine also in going to Ms work from his house, about a mile distant, over a part of the track that was in his charge. His work began at seven in the morning, and at half-past six on the day of Ms death lie started as usual. Five minutes later he was overtaken by a train and killed. For reasons that the jury found insufficient to excuse
In Chesapeake & Ohio Railway Company v. DeAtley, supra, it was held: “A railroad employee having voluntarily entered an employment requiring him on proper occasions to board a moving-train assumes the risk normally incident thereto, other than such risk as may arise from the failure of the engineer to use due care to operate the train at a moderate rate of speed, so as to enable his coemployee to board it without undue peril. Such an employee may presume the engineer will exercise clue care for his safety, and does not assume the risk attributable to operation at unduly high speed until made aware of danger, unless the undue speed and consequent danger are so obvious that an ordinarily careful person in his situation would observe the speed and appreciate the danger. An employee is not bound to exercise care to discover extraordinary
“It is argued, that, so far as the question of assumed risks is
Tn the instant case Lochridge, the fireman on the work-train number 383, assumed the ordinary risks of his employment. These did not include hazards produced by negligence of his coemployees. Hazards produced by negligence of his coemployees would he extraordinary risks. Extraordinary risks produced by negligence of his coemployees would be assumed by him only when the negligence and danger arising from it were fully known to him or were so obvious that he as an ordinarily careful person under the circumstances would observe and appreciate them. The train number 383 was rightfully on the track until it passed the siding at Hall’s station without stopping and taking the siding to allow the southbound passenger-train number 3 to pass. At that time the negligence of the conductor and engineer in charge of the train came into existence. The collision occurred about five minutes thereafter while the train which they were operating was proceeding-north on the schedule time of the southbound passenger-traiu number 3. On the question of assumption of risk, it becomes a question of fact as to when the negligence of the conductor and engineer and danger arising from it became known to Lochridge, the fireman, or became so obvious that as an ordinarily careful person he would observe and appreciate them, and what he did or said, if anything, after the danger was so known or obvious, going to show that he then voluntarily assumed this extraordinary risk of danger of collision with the southbound passenger-train number 3. The engineer and fireman were both killed, and there was no evidence as to the sayings or conduct of the fireman during- the short interval of time intervening between the time of passing- the station and the collision. Any conclusion that he assumed the extraordinary risk must necessarily be based upon inference derived from the facts and circumstances occuring during that interval. They do not demand such a conclusion.
The Court of Appeals ruled: “In a suit under the Federal employer’s liability act, an instruction which defines ‘preponderance of evidence’ in the language of the Civil Code of Georgia,
The Court of Appeals ruled: “The court did not commit reversible error in stating in charge to the jury certain allegations of the petition, even though there ma}r have been no evidence or insufficient evidence to support them.” Error was assigned upon this ruling, on the ground that the charge o£ the trial judge to which the ruling had reference stated contentions of the plaintiff based oh material allegations of the petition as amended, some of which were not supported by evidence, and permitted the jury to consider such allegations without evidence to support them; whereas the judge should have eliminated all such allegations and should have instructed the jury only as to those which were supported by evidence, and that for the reasons just stated the Court of Appeals erred in its ruling as above quoted. The decision of the Court of Appeals was not erroneous for the reasons assigned.
The Court of Appeals ruled: “The court gave to the jury the following instructions, which were variously excepted to: U charge you that where an engineer, fireman, conductor, and other members of the train-crew are shown to have been operating a train, and a wreck occurs, there is no presumption that either of them is without fault. I charge you that the law presumes that every man in his private and official character does his duty, until the contrary is shown.’ Held: Under the facts and issues of this case, there was no merit in any. of the exceptions to this charge.” Erior was assigned upon this ruling, on the ground that it was erroneous “for the reasons stated” in the tenth ground of the motion for new trial, “hereinabove set forth.” The grounds so set forth were as follows: “'Movant insists that the first sentence of said charge was erroneous, because, in an action under the Federal
The Court of Appeals ruled that ground 8 of the motion for new trial was “controlled adversely to the plaintiff in error by Western & Atlantic Railroad v. Hetzel, 38 Ga. App. 556 (3) (144 S. E. 506). See also Norfolk & Western Ry. Co. v. Earnest, 229 U. S. 114, 33 Sup. Ct. 654, 57 L. ed. 1096).” Error was assigned upon this ruling “for the reasons set out” in ground 8 of the motion for new trial, and further “because the said ground 8 is not controlled adversely to the plaintiff in error by the case of Western & Atlantic Railroad v. Hetzel, 38 Ga. App. 556 (3), it being still undetermined either by this honorable court or by the Supreme Court of the United States, whether the decision in headnote 3 of said cited case is a correct ruling.” The assignment of error to the above ruling of the Court of Appeals states that the ground 8 of the motion for a new trial complains of a charge: ' “If the jury finds that the decedent, John Lochridge, was guilty of some negligence which contributed to his death, but that the defendant railroad was also guilty of negligence in some or all of the particulars described in the petition, which likewise contributed partly to the injury, and if the damages on that account are diminished by the jury in proportion to the amount of negligence attributable to such employee, the jury will consider this rule as applicable to the entire charge of the court on the measure of damages,” and the complaints of the charge were: “Said charge, in substance and effect, amounted to an instruction to the jury that even though
The Court of Appeals ruled “that ‘the verdict for $20,000 was not excessive as a matter of law’.” Error was assigned upon this ruling, on the ground that even if it should be held that the deceased did not assume the risk of the collision, the evidence demands the conclusion that he was guilty of gross contributory negligence, and a proper allowance because thereof should have so reduced the amount which plaintiff might otherwise have been entitled to recover that a verdict for $20,000 was so excessive as to indicate gross bias, prejudice, or misapprehension on the part of the jury, in favor of plaintiff. The decision of the Court of Appeals was not erroneous for the reasons assigned.
Judgment affirmed.