The petition did not allege a state of facts amounting to negligence on the part of the defendant railroad in failing to provide its station-agent employee with a safe place to work under the Federal Employers' Liability Act.

DECIDED JANUARY 29, 1949. Mrs. Eudelle M. Towns, widow of Edward D. Towns, instituted an action as administratrix of his estate against the Southern Railway Company to recover damages for the benefit of herself and surviving children for the homicide of her deceased husband whose death was alleged to have resulted from the negligent failure to provide the deceased, who was employed in interstate commerce, with a safe place to work as required by the Federal Employers' Liability Act. The petition alleged substantially the following: that the defendant was a common carrier engaged in interstate commerce at all times mentioned in the petition; that deceased was employed by it in such commerce as station agent in Flovilla, Butts County, Georgia; that as such agent, deceased's duties were to receive and deliver goods and property to be shipped from and to said town, to collect and account for carrying charges, to look after passengers and their baggage; that deceased with the knowledge and approval of defendant was acting as agent for the Railway Express and as such had the duty of receiving and delivering goods sent by express over the railroad and of collecting the charges therefor and accounting counting for them; that it was deceased's duty to be constantly about the premises of defendant, especially the portion where passengers were received and discharged at and about the times for arrival and departure of trains; that prior to April 19, 1944, the Western Union Telegraph Company, with the approval and co-operation of the defendant and for the joint and common benefit and convenience of both companies, had erected a tall pole on the premises of the defendant as a support for the wires of the telegraph company; that the pole was erected about five feet from the north corner of the depot building and about as near as could be to the point where passengers entered and departed from trains at said station; that the pole was steadied *Page 511 by a guy wire of iron or steel attached to it, at about the top and extending diagonally downward and fastened at the other end to an iron or steel anchor buried in the ground about five feet from the west corner of the depot building; that the wire slanted down just over the door of the main waiting room of the depot where the public transacted business with deceased and waited for trains when the weather was inclement, and that for a considerable distance the wire was no higher from the ground than the height of an average person; that the wire was within the area where customers and others were accustomed to stand with the knowledge and consent of both companies; that the wire was a convenient, comfortable and attractive thing to lean against and rest upon and that for many years people had customarily and habitually leaned against it and rested upon it with the knowledge and consent of said companies; that in the long course of years the wire had become rusted at the point where it was connected with said anchor which rusting had been facilitated and aggravated by coal dust which had been allowed to accumulate, so that the wire was so weak it had no effect in holding up the pole or any other weighty object; that on April 19, 1944, deceased while in the course of employment and the discharge of his duties, and awaiting the arrival of a train where passengers usually boarded and departed from trains, placed his back against said wire at about the height of his shoulders and rested his arm upon the wire which gave way at a point at the ground, for the reasons stated, as a result of which deceased was thrown to the ground, striking his head against a baseboard of the depot, causing injuries to his skull as a result of which he died on April 22, 1944; that the defendant was negligent in failing to exercise due care to provide deceased a reasonably safe place to work, and in permitting the installation of the wire, in allowing coal dust to accumulate around it and in failing to inspect it so as to discover its rusted and weakened condition and in neglecting to repair it. The court sustained the general demurrer to the petition and dismissed the action and the plaintiff excepted. The election by the widow to institute this action *Page 512 as administratrix under the Federal Employers' Liability Act at once eliminates the question whether the defendant is liable under the common law or statutes of this State. The only question involved is whether the defendant was negligent in failing to exercise ordinary care in furnishing the deceased a reasonably safe place to work.

If the defendant was negligent under the Employers' Liability Act, any contributing negligence of the deceased would not defeat a recovery. 45 U.S.C.A. 51-53. The employee shall not be held to have assumed the risks of his employment where the injury or death resulted in whole or in part from the negligence of any of the officers, agents or employees of the carrier.45 U.S.C.A. 54; Tiller v. A. C. L. R. Co., 318 U.S. 54 (63 Sup. Ct. 444,87 L. ed. 610, 143 A.L.R. 967). Assuming for the sake of argument or "to avoid argument" that the deceased was engaged in the duties of his employment when injured, we do not think the petition alleges a case of negligence under the Federal Employers' Liability Act as distinguished from common-law liability as fixed by Georgia courts. In such cases the common law as declared by the Federal courts governs. Southern RailwayCompany v. Bradshaw, 73 Ga. App. 438 (37 S.E.2d 150); Southern Railway Company v. Gray, 241 U.S. 333 (36 Sup. Ct. 558, 60 L. ed. 1030); Lillie v. Thompson, 332 U.S. 459 (68 Sup. Ct. 140, 92 L. ed. 115).

The only question involved here is whether the defendant should have anticipated that the deceased would put the guy wire to such use as he did. 38 Am. Jur. § 24, p. 667. We do not think the petition alleges facts which show such a duty of anticipation. Distinction must be drawn between the duty to anticipate that members of the public would so use the wire and the duty to anticipate the employee's use of it, for the reason that the action here is based on the failure to provide the employee with a safe place to work. If the railroad knew or should have known that the deceased would so use the wire in connection with his work it owed him the duty to make it reasonably safe for such use. The petition, however, does not allege any fact as a basis for the contention that the defendant had any knowledge of the peculiar use of the wire by the deceased or any other employee, or any fact from which it could have reasonably *Page 513 concluded that deceased or any other employee would so use the wire. It is alleged that members of the public so used it but it is not alleged that the defendant had actual knowledge that the deceased so used it. The carrier was not obliged to foresee and guard against misuse of the wire. Brady v. Southern Railway Co., 320 U.S. 476 (64 Sup. Ct. 232, 88 L. ed. 239).

The instant case is much weaker than the Brady case because in that case there was evidence of previous misuse by employees. Under the allegations of the petition we can not see how the railroad would be under a duty to guard against the use to which the deceased put the wire when there was no occasion for it to connect the wire with any work or duties to be performed by the deceased insofar as leaning or reclining on the wire was concerned. This principle is fully discussed in Babcock LumberCompany v. Johnson, 120 Ga. 1030 (48 S.E. 438). The court there concluded that the fact that an appliance has been diverted to a new use will not render the defendant liable if that diversion occurred without his knowledge or consent. See alsoRichmond Danville R. Co. v. Dickey, 90 Ga. 491 (16 S.E. 212). The cases of Mayor c. of Jackson v. Boone, 93 Ga. 662 (20 S.E. 46), Georgia Power Co. v. Leonard, 187 Ga. 608 (1 S.E.2d, 579), and Leonard v. Georgia Power Co., 58 Ga. App. 130 (197 S.E. 869), are common-law cases and do not involve the question of furnishing a safe place to work under the Federal Employers' Liability Act, nor the question whether an employer should anticipate injury from an unusual or unintended use of an appliance or instrumentality without notice of such use by an employee. The case of Thompson v. Boles, 123 Fed. 2d, 487, involves no such question as is here involved.

We hold that the petition did not allege facts constituting negligence on the part of the railroad under the Federal Employers' Liability Act and do not predicate our conclusion on any contributory negligence on the part of the deceased nor on his assumption of any risks incident to his employment.

The court did not err in sustaining the general demurrer and dismissing the action.

Judgment affirmed. Sutton, C. J., and Parker, J., concur. *Page 514