Atlantic Coast Line R. Co. v. Shed, 35190

• Decision Date: 07 October 1954
• Docket Number: No. 35190,No. 2,35190,2
• Citation: 90 Ga.App. 766,84 S.E.2d 212
• Parties: ATLANTIC COAST LINE RAILROAD COMPANY v. Ned SHED
• Court: Georgia Court of Appeals

Page 212

84 S.E.2d 212

90 Ga.App. 766

ATLANTIC COAST LINE RAILROAD COMPANY v. Ned SHED.

No. 35190.

Court of Appeals of Georgia, Division No. 2.

Oct. 7, 1954.

Syllabus by the Court

1. Special grounds 1 and 4 show reversible error, because the pleadings and the evidence brought into issue the question of contributory negligence on the part of the employee. The evidence adduced is not sufficient to demand a finding that the plaintiff was not guilty of contributory negligence causing his injury. In the absence of a request so to charge, the court committed reversible error in not charging the law of contributory negligence regarding the issue on this question raised under the pleadings and the evidence.

2. As to special grounds 3 and 2, we refer interested parties to divisions 2 and 3 of this opinion.

Ned Shed, defendant in error here (whom we shall call the plaintiff), filed a petition in the Superior Court of Tift County against Atlantic Coast Line Railroad Company, plaintiff in error here (whom we shall call the defendant), seeking to recover damages for alleged negligence of the defendant. The petition alleged that he was 53 years of age and employed as a section hand by the defendant, and that the action was brought under the provisions of the Federal Employers' Liability Act. It is alleged that the plaintiff was engaged at the time of the alleged injury in repairing a section of railroad track by pulling and replacing worn and defective crossties for the defendant in the furtherance of its business of interstate commerce, and under the supervision of a section foreman; and alleged further that the plaintiff was working with a team mate pulling crossties which had been marked by the section foreman. The pulling was being done with a large tong known as a 'Dog.' The petition alleged that the plaintiff's teammate negligently pulled his end of the 'Dog' without any warning with a sudden and extremely forceful pull or jerk, causing the end of the handle held by the plaintiff to strike the plaintiff in the abdomen; that the steel rails were not jacked up high enough to permit normal removal of the crossties and the plaintiff called to another employee operating the jacks within the hearing of the section foreman, and asked that the rails be jacked up further, but the section foreman ordered that the rails be jacked up no further because the track would hump; and if the crossties were jacked higher, they would cause ballast to go under the rails and make a hump; that the failure to have the steel rails jacked properly was negligence; that the plaintiff was ruptured as a result of the alleged negligence, and he seeks damages for loss of earnings, pain and suffering, and a high degree of permanent disability; and that the plaintiff was not in any manner negligent in the performance of his duties at the time of his injury.

The defendant specially demurred to some of the paragraphs of the petition, and it was thereafter amended to meet the demurrer. The defendant filed its answer, admitting the jurisdictional allegation of the petition, and that the cause of action was one arising from the provisions of the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. The defendant denied that it was negligent, and denied the paragraph of the petition alleging that the plaintiff was not negligent in any manner in the performance of his duties and that in no manner did he contribute to his injury. The evidence developed at the trial revealed, according to the plaintiff's testimony, that the plaintiff had been regularly employed for eight years by the railroad company as a section hand at the time of his injury. He testified: that, on the day he was hurt, the section gang was pulling defective crossties on a section of track near Tifton, Georgia; that rails customarily are jacked up to permit removal of the crossties; that the last crosstie had a hump in it which caught on a steel rail; that four jacks were used; two were set by the side at the crosstie and two were set further down the rail; that, at the time of the injury, the plaintiff was working with a team-mate, George Gray, using a large tong called a 'Dog' in pulling the crosstie; the plaintiff further testified that, when working on the crosstie in question, he asked the section foreman for another notch on the jacks; that the section foreman stated that the jacks were high enough and another notch on same would cause the steel rail to hump; that the plaintiff told his teammate, 'Let's work the ties a little bit.'

At this point the following questions were propounded and the following answers given:

'Q. Ned, did you give George Gray a signal? A. I give him a signal but he jumped the gun.

'Q. He jumped the gun? A. Yes, sir.

'Q. Ned, tell the jury how that happened? A. I told George to let's work it a little bit, and I says 'Let's go', and before I could get straightened up he snatched it out and the dog hit me in the side right here.'

The plaintiff further testified that, after the 'Dog' had been given to another section hand, the plaintiff went to a shade; that the other section hand told the plaintiff that the 'Bear,' (meaning heat) had him, whereupon the plaintiff said that the 'Dog' had hit him. The plaintiff testified on cross-examination that he was hurt on August 29, 1950, and he continued to work the rest of that week; that on Friday of that week he went to see a doctor about chills and fever, but didn't tell the doctor about getting hurt; that he didn't tell his section foreman about getting hurt until the last part of September; that the day he told his section foreman was the day the quit work; that he didn't tell any of the people he worked with that his side hurt until he reported to his section foreman the day he quit work.

There are a few more excerpts from the testimony of the plaintiff which might be helpful in deciding the issue raised in this case: He testified that, up to August 29, 1950, his regular wages were from $83 to $92 twice a month after deductions; that, prior to that time (meaning the time of the alleged injury), the plaintiff had lost no time from his work; that, since that day he put on the truss prescribed by Doctor Pittman (apparently September 19, 1950), he had been picking a little cotton and picking a few plants; that he could not work a whole day and that since he put on the truss he had only been able to make about $15 or $20 per week.

The evidence of the defendant contradicted that of the plaintiff in many instances, among them what the plaintiff said and didn't say on the occasion he was injured. The jury returned a verdict for the plaintiff for the principal sum of $2,500. We have not attempted to set forth all the evidence either for the plaintiff or for the defendant, but we think we have set out a sufficient amount of the evidence to illustrate the opinion of the court and we are not, in this opinion, passing upon the question as to whether or not the evidence sustains a verdict on the statutory grounds, since the case may be tried again. Therefore, we will deal with the special grounds only. The defendant filed a motion for new trial on the statutory grounds and later added four special grounds. The court denied this motion, and error is assigned here on that judgment.

Bennet & Vann, Thomas K. Vann, Jr., Quitman, R. D. Smith, Tifton, for plaintiff in error.

Maxwell A. Hines, Bob Reinhardt, Tifton, for defendant in error.

GARDNER, Presiding Judge.

1. Special grounds 1 and 4 contain related questions. The case at bar was tried under the provisions of the Federal Employers' Liability Act. All matters of substantive law are controlled by the provisions of that act. The plaintiff and the defendant are entitled to the benefit, in all State courts, of all the substantive law of that act of Congress. The trial court charged the jury on the essential provisions of said act as found in Title 45 U.S.C.A. §§...