Southern Ry. Co. v. Puckett

Citation85 S.E. 809,16 Ga.App. 551
Decision Date03 July 1915
Docket Number5885.
PartiesSOUTHERN RY. CO. v. PUCKETT.
CourtUnited States Court of Appeals (Georgia)

Writ of Error to the Supreme Court of the United States Allowed July 7, 1915.

Syllabus by the Court.

Since the passage by Congress of the amendment of 1910 (Act April 5, 1910, c. 143, 36 Stat. 291) to Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. 1913, §§ 8657-8665), generally known as the federal "Employers' Liability Act," a suit brought in a state court by any person who has a cause of action under this act cannot for any reason be removed to the United States courts. Strauser v. Chicago Ry. Co. (D. C.) 193 F. 293; Symonds v. St. Louis R Co. (C. C.) 192 F. 353; Ullrich v. New York R. Co (D. C.) 193 F. 768; Kansas City R. Co. v. Cook, 100 Ark. 467, 140 S.W. 579; Lee v. Toledo, St. L. & S.W R. Co. (D. C.) 193 F. 685; McChesney v. Ill. Cent R. Co. (D. C.) 197 F. 85; Hulac v. Chicago & N.W. R. Co. (D. C.) 194 F. 747.

The court did not err in allowing, over the defendant's objections, the amendment to the petition.

The petition as finally amended set forth a cause of action under the federal Employers' Liability Act; and the demurrers thereto, both general and special, were properly overruled.

The admission of certain printed rules of the defendant company was not error.

Under repeated rulings of this court and of the Supreme Court, an assignment of error upon the ground that the court erred in refusing to grant a nonsuit will not be considered, when the case proceeds to a verdict, and exception is taken to the refusal to grant a new trial on the ground that the verdict was not supported by evidence.

The instructions complained of contained no error requiring the grant of a new trial.

The failure to give certain instructions to the jury, in the absence of timely written requests therefor, was not error.

Under the pleadings and the evidence, the jury were authorized to find that the plaintiff's injury was caused by the negligence of the defendant company, and that this negligence was also the negligence of one or more of the three individual agents of the company against whom negligence was alleged in the petition.

Under the facts of this case, both the defendant company and the plaintiff, at the time of the infliction of the injury sued for, were engaged in interstate commerce within the meaning of the federal Employers' Liability Act.

The verdict was authorized by the evidence, and the court did not err in overruling the motion for a new trial.

Error from City Court of Atlanta; H. M. Reid, Judge.

Action by H. E. Puckett against the Southern Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

McDaniel & Black, of Atlanta, for plaintiff in error.

Atkinson & Born, of Atlanta, for defendant in error.

BROYLES J.

H. E. Puckett sued the Southern Railway Company for damages, based on injuries alleged to have been sustained by him in August, 1911, while at work for the defendant company in its Atlanta yard, as car inspector. On the night of the alleged injuries and prior thereto he had been engaged in inspecting cars which had been put into an interstate train, to wit, train No. 75, which ran between Atlanta, Ga., and Birmingham, Ala. At the time he was injured he had inspected some 23 to 25 cars in this train, and there remained to be inspected 12 or 14 cars which were to be placed in the same train. While waiting for these remaining cars to be placed in the train, and while making the entries and necessary data of the inspection of the cars in his inspection book, a collision between other cars of the defendant occurred in the yard near by, and several tracks of the defendant were thereby obstructed and blocked by the wreckage. An employé of the defendant, one O'Berry, was caught in the collision and pinned beneath a car and the engine. In obedience to the printed rules of the company the plaintiff immediately went to the scene of the wreck, to render what assistance he could, and was there instructed by an employé of the company superior to him in authority to go and get a "jack" to assist in raising the wrecked car, so as to extricate O'Berry and clear the tracks of the wreck. The remaining cars which had not been placed in train No. 75 were to have been transported over some of the tracks obstructed by the wreck, and on account of these tracks being so obstructed it became necessary to detour these cars for some distance over other tracks, and thereby train No. 75 was delayed about an hour. While the plaintiff was assisting in clearing up the wreck, and while carrying blocks on his shoulder for the purpose of "jacking up" the wrecked car and replacing it on the track, so that O'Berry could be released and the tracks freed from their obstruction, he stumbled over three large clinkers about six or eight inches in diameter, on the roadway near the track, which started him falling, and in stumbling he struck his foot against two old cross-ties overgrown with grass, which were on the roadway near one of the tracks, about five feet from the clinkers, and fell and was seriously and permanently injured.

The eighth and ninth headnotes alone need elaboration. It is earnestly argued by learned counsel for plaintiff in error that the evidence in this case did not show any actionable negligence by the railroad company. The allegations of negligence in the petition were: (1) That three large clinkers were on the roadbed; (2) that two old cross-ties, overgrown with grass, were lying alongside and near the track; and (3) that grass had grown upon the roadbed. It is the duty of the master to furnish his servant with a safe place in which to work, and he is charged with the exercise of ordinary care in the selection and maintenance of such a place. Counsel cites the case of Lee v. Central Railroad, 86 Ga. 231, 12 S.E. 307, where it was held that the presence of one clinker of unusual size on the margin of a railway track, where switching is done, and upon which a brakeman accidentally steps in descending from a moving engine, will not render the company liable for a personal injury which the brakeman sustained. In Georgia Railroad v. Hunter, 9 Ga.App. 384, 71 S.E. 681, it was held that the railroad was negligent in having a pile of clinkers near its railroad track. The ruling in Zipperer v. Seaboard Air Line Railway, 129 Ga. 387, 58 S.E. 872, is not in conflict with the holding in the Hunter Case, or with our holding in the instant case. There the defendant, a track hand, while walking along the side of the railroad track, struck his foot against a steel rail which lay in his path, and was injured, and the court held that he could not recover, for the reason that the presence of the rail was not negligence on the part of the railroad company. In that case there was no allegation that it was not necessary for the railroad company to have the steel rail where it was, or that it was placed there in an improper manner. Moreover, in that case the rail was placed on the roadbed, near the defendant's track, and was in full view of every passer-by; it was not overgrown with and concealed by grass, as were the cross- ties in the case at bar. We are not disposed to extend the ruling of the Supreme Court in the Lee Case, supra, so as to hold that, as a matter of law, the presence of three or more large clinkers near a track in a railroad yard is not negligence on the part of the railroad company. In our opinion, under the circumstances of the instant case, it was for the jury to say whether or not the presence of these large clinkers in its yard and near its tracks was negligence. We think also that it was for the jury to say whether or not the presence of the cross-ties over which the plaintiff fell, and the presence of the grass on the roadway of the defendant company, was negligence. As to the cross-ties and grass, the rules of the defendant, as introduced in evidence, specifically provide that old cross-ties be burned, and not left near the tracks, and that the grass shall be kept cut along the roadbed. In our opinion, it was also for the jury to say what was the proximate cause of the plaintiff's injury; whether it was the clinkers over which he first stumbled, or the cross-ties upon which he next stumbled and fell. While he testified that the clinkers started him falling, he distinctly swore also that if it had not been for the cross-ties he would not have fallen.

The petition alleges that certain individual agents of the defendant company, to wit, R. L. Cowan, Samuel Smith, and J N. Biddy, were guilty of the negligence that caused plaintiff's injury. The defendant introduced in evidence a printed rule of the company, addressed to yardmasters, which required its yardmaster to keep the yards of the railroad clear of all obstructions, and it is insisted that, if any particular agent of ...

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