49 S.E.2d 833 (Ga.App. 1948), 32130, Brown v. Western Ry. of Ala.
| Citation | 49 S.E.2d 833, 77 Ga.App. 780 |
| Party Name | BROWN v. WESTERN RY. OF ALABAMA. |
| Case Date | October 02, 1948 |
| Court | Georgia Court of Appeals |
Page 833
Casemaker Note: Portions of this opinion were specifically rejected by a later court in 80 Ga.App. 770.
Casemaker Note: Portions of this opinion were specifically rejected by a higher court in 338 U.S. 294.
Casemaker Note: Portions of this opinion were specifically rejected by a later court in 57 S.E.2d 454
Casemaker Note: Portions of this opinion were specifically rejected by a later court in 83 S.E.2d 240
Rehearing Denied Oct. 22, 1948.
Syllabus by the Court.
In an action brought under the Federal Employers' Liability Act, 45 U.S. C.A. § 51 et seq., where it appears from the allegations of the petition, when construed most strongly against the pleader, that the negligence which caused the injuries complained of was that of the employee who failed to notice and avoid a large clinker in the railroad yard, but instead stepped on the same and fell, and where the alleged facts fail to disclose any negligence on the part of the employer which caused or contributed to the alleged injury, the employer is not liable to such employee and the trial court did not err in sustaining a general demurrer to the employee's petition and in dismissing the action.
Richard J. Brown sued the Western Railway of Alabama in Fulton Superior Court for injuries sustained while in the employ of said company. The petition alleged substantially the following: Defendant railroad is a corporation having an office, agent, and place of doing business in Fulton County, and has injured and damaged petitioner in the sum of $5,000.00. Petitioner was employed on or about August 25, 1947 by the Atlanta and West Point [77 Ga.App. 781] Railroad Company as a brakeman on freight train No. 1, running from Atlanta to West Point, and by the Western Railway of Alabama, the defendant, on this same train while it was running from West Point, Georgia, through Opelika, Alabama, to Montgomery, Alabama. 'Petitioner while engaged in the employment aforesaid was injured as a result of the negligence of defendant when he slipped and fell on a large clinker lying beside the track in the switch yards of Opelika, Alabama, over which it was necessary for petitioner to cross in giving signals to his engineer.
Page 834
* * * The yards aforesaid are jointly operated by the defendant and the trustees of the Central of Georgia Railway Company. * * * Defendant had allowed clinkers, coal, bottles, tie plates, trash and other debris to collect in said yards along the side of the tracks and * * * it was necessary for petitioner, in the performance of his duties, to cross over such material and debris. * * * It was the duty of defendant to use reasonable and proper care to provide him a reasonable safe place in which to work in the course of his duties and employment. * * * The defendant did not regard its duties in this behalf to use reasonable and proper care to provide plaintiff a reasonably safe place in which to discharge his duties as aforesaid, but directed him to work in said yards at said time under the conditions above described. * * * The debris aforesaid scattered along beside the tracks and over said yards at said time made [the] yards unsafe for use by petitioner in the performance of his duties and * * * defendant thereby negligently failed to furnish petitioner a reasonably safe place in which to work by reason thereof. * * * Petitioner while switching cars in the yards aforesaid, ran around the engine, as his duties at said time required, to mount the top of cars being handled so that he could see the back end of the cut of cars and the engineer at the same time and give the necessary signals for the switching movement there being made, and while in the performance of such duties as aforesaid he stepped on a large clinker lying beside the tracks as aforesaid which caused petitioner to fall...
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