Brady v. Bugg, (No. 18394.)

• Decision Date: 16 March 1928
• Docket Number: (No. 18394.)
• Citation: 142 S.E. 304,38 Ga.App. 48
• Parties: BRADY. v. BUGG.
• Court: Georgia Court of Appeals

38 Ga.App. 48

142 S.E. 304

BRADY.

v.BUGG.

(No. 18394.)

Court of Appeals of Georgia. Division No. 2.

March 16, 1928.

(Syllabus by Editorial Staff.)

Error from Superior Court, Macon County; Z. A. Littlejohn, Judge.

Suit by A. L. Brady against B. L. Bugg, receiver. Judgment for defendant, and plaintiff brings error. Affirmed.

R. D. Feagin and J. F. Urquhardt, both of Macon, for plaintiff in error.

Brandon & Hynds, of Atlanta, John B. Guerry, of Montezuma, and J. B. Wall and Jay & Garden, all of Fitzgerald, for defendant in error.

JENKINS, P. J. This was a suit for personal injuries to a railway employee, brought under the Federal Employer's Liability Act (45 USCA §§ 51-59; U. S. Comp. St. §§ 8657-8665). The petition shows that the plaintiff was injured while undertaking, alone and unaided, to move a push car, weighing about 1, 000 pounds and used for carrying coal, from the elevated side track of the railway down to its main line. It appears that the plaintiff sought to remove the push car because the side track had become blocked by a locomotive between the coal bins and the pumping station. While the petition alleges that the plaintiff had previously complained to the defendant about being required to transport coal from the coal chute to the pumping station operated by the plaintiff, and that the defendant had instructed him to continue this portion of his duties and employment, it does not appear that this complaint was based upon any danger which might result from such work, nor does it appear that the defendant had promised to rectify the condition complained of.

It is alleged that, since the push car on the side track at the coal chute was blocked in by the switch engine left on the side track, the plaintiff, in order to procure coal to operate the pumping station, undertook to move the push car from the side track (elevated about four feet above the main line) down to the main line; that, after having lifted the push car off the side track, and after having headed it down the embankment, with its front wheels abutting the first rail of the main track, and the body of the car resting up against the inclined side of the embankment he undertook to lift the front end of the push car so as to place the car upon the track of the main line, and that, when he was so doing, the excessive weight or the car caused it to run down the embankment, and against him, causing the injuries complained of. It is alleged that the push car was deceptive as to its weight, and that the plaintiff did not know that it was beyond his capacity to move, but that the defendant did. The petition was dismissed on general demurrer, and the plaintiff excepted. Held:

1. While it is true that, in actions brought under the Federal Employer's Liability Act for personal injuries received by an employee of a railway company, contributory negligence of the employee will not bar a recovery, but in such cases the damages are to be diminished in proportion to the amount of negligence attributable to him. still in such cases,...