Central of Georgia Ry. Co. v. Goens
| Decision Date | 03 October 1923 |
| Docket Number | 14345. |
| Citation | 119 S.E. 669,30 Ga.App. 770 |
| Parties | CENTRAL OF GEORGIA RY. CO. v. GOENS. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
"Where suit was brought by an administrator, proof his representative character was unnecessary, where no plea of ne unques administrator was filed." Merritt v. Cotton States Life Ins. Co., 55 Ga. 103 (3).
Under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665), an employer owes to the employee the exercise of ordinary care and prudence to furnish him with a safe place in which to work (Seaboard Air Line Ry. v. Horton, 233 U.S. 501, 34 S.Ct. 635, 58 L.Ed. 1062, L.R.A. 1915C, 1 Ann.Cas. 1915B, 475); while "an employee assumes the ordinary risks and hazards of his occupation, and also those defects and risks which are known to him, or which are plainly observable, although due to the master's negligence," contributory negligence merely reduces the damages (Charleston & W. C. Ry. Co. v. Sylvester, 17 Ga.App. 85, 86 S.E. 275), and "what particular perils are incident to a given business must be determined by the jury, and not by the court, under all the facts and circumstances of each case." Under the facts of the case at bar, the jury had the right to determine the merit of the defense of assumption of risks. The general grounds of the motion for a new trial are without merit.
"The admissions contained in an answer of the defendant, made and filed by him in another case, are admissible in evidence against him when pertinent to a question involved in the case on trial." Printup v. Patton, 91 Ga. 422 (1) 18 S.E. 311.
The mortality tables were admissible for the jury to consider, if they chose to do so, in ascertaining the longevity of the deceased and of one of the beneficiaries, whose ages were shown.
Under the rule stated in the case of St. Louis, Iron Mountain & So. Ry. Co. v. Craft, 237 U.S. 648, 35 S.Ct. 704, 59 L.Ed. 1160, that "such pain and suffering as are substantially contemporaneous with death or mere incidents to it, as also the short periods of insensibility which sometimes intervene between fatal injuries and death, afford no basis for a separate estimation or award of damages" under the act of Congress of April 5, 1910 (U. S. Comp. St.§§ 8662, 8665) as applied to the facts of the case at bar, the question of "conscious pain and suffering" was for the jury.
No reversible error was shown by grounds 6, 7, and 9 of the amendment to the motion for a new trial.
The present cash value of the future benefits of which the beneficiaries were deprived by death, making adequate allowance according to the circumstances for the earning power of money, is the proper measure of recovery against an interstate railway carrier under the Employers' Liability Act (U. S. Comp. St.§§ 8657-8665). Chesapeake & Ohio Ry Co. v. Kelly, 241 U.S. 485 (2), 36 S.Ct. 630, 60 L.Ed. 1117, L.R.A. 1917F, 367. The judge's charge was not in accordance with this rule, and in this respect was erroneous.
A verdict could be returned in a lump sum, without apportioning the recovery among the beneficiaries.
Additional Syllabus by Editorial Staff.
Where action was brought under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665) for death of a railroad switchman run over upon stumbling against clinkers, a description thereof in the petition as a "large accumulation of clinkers" was objectionable, since the clinkers could and should be more fully described.
An attack on part of a petition as being "illegal, immaterial and improper as a basis of recovery in this action" held not good as a general demurrer, and insufficient as a special demurrer, in that it fails to point out wherein the paragraph is subject to the criticisms made.
Where a railroad switchman stumbled against clinkers near the track, which the petition alleged rendered the track and roadbed and the place where deceased was to work dangerous, a special demurrer that the quoted words were a conclusion was without merit when the facts upon which the conclusion was based were sufficiently set out.
In an action for wrongful death, brought under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665), that both defendant and deceased were engaged in interstate commerce at the time must be alleged.
In an action under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665) for wrongful death, allegations in the petition that deceased's relatives were poor people, and that they were dependent upon deceased during his lifetime, were appropriate.
In an action under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665) for death, an allegation in the petition that the beneficiaries had a "large family to support" should have been omitted.
In an action under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665) for death, an allegation in the petition that deceased's father and mother depended on him for their support in their old age "when they will be unable to care for themselves" should have been stricken on demurrer.
In an action under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665) for death, an allegation in the petition that deceased contributed $200 per month to the support of the beneficiaries was appropriate.
In an action under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665) for death, an objection by special demurrer that an allegation in the petition in which recovery of $20,000 was sought for the pain and suffering of deceased was "illegal and unauthorized" held insufficient in that it failed to point out why such recovery was improper.
Error from City Court of Americus; W. M. Harper, Judge.
Action by J. W. Goens, administrator of the estate of John Clifford Goens, deceased, against the Central of Georgia Railway Company. Judgment for plaintiff, and defendant brings error. Reversed.
R. L. Maynard, of Americus, and Yeomans & Wilkinson, of Dawson, for plaintiff in error.
B. M. Turnipseed, of Ft. Gaines, and J. E. D. Shipp, of Americus, for defendant in error.
J. W. Goens, as administrator of the estate of John Clifford Goens, sued the Central of Georgia Railway Company under the federal Employers' Liability Act for damages for the homicide of his intestate. Defendant filed general and special demurrers, and pleaded obvious danger and assumption of risk. The court overruled each and all of the demurrers to the petition as amended, and the jury rendered a verdict for $7,500. Defendant excepts to the overruling of its demurrers, and of its motion for a new trial.
So far as is material to a determination of this case, the petition as amended is as follows:
(1) J. W. Goens is the duly appointed administrator of the estate of deceased.
(2) Defendant is a corporation under the laws of Georgia, with an office and place of business in Sumter county, Ga.
(3) Defendant is a common carrier owning and operating a line of railroad through Sumter county, Ga., having a depot and yard in Americus, Ga., and operating a switch engine on said yard.
(4) Defendant's side track in said yard branches off from the east side of the main line several hundred yards north of McGarrah street, and runs almost due south across said street and up a sharp grade to tracks west of the warehouse of Glover Grocery Company and Americus Grocery Company.
(5) On and prior to October 6, 1920, deceased was employed by defendant as a switchman in its yards at Americus, and as such it was his duty to accompany the switch engine, couple cars, change switches, and assist in placing cars to be loaded and unloaded in and about defendant's yards at Americus.
(6) About 11 o'clock on the night of October 6, 1920, the switch engine was on the part of the side track described in paragraph 4 of the petition, north of McGarrah street, in the act of pushing three loaded cars ahead of it, due south, across said street and placing them on the side track south of said street and west of said warehouse. Deceased was at his usual place of work accompanying said switch engine, and walking beside the moving cars about 2 1/2 feet from the west side of the side track, about 100 feet north of McGarrah street, when his foot hit against an arch brick 8 inches square and 5 inches thick, placed there by the agents of the defendant company, and also stumbled over "a large accumulation of clinkers" placed about 2 1/2 feet west of and along said side track about 100 feet north of McGarrah street by the employees of defendant. In stumbling deceased fell by the side of the moving train, and under the rear trucks of the front freight car, and was also hit by a projection of iron and wood upon which the door slid back and forth, attached to the side of the car at the bottom of the door, and thus knocked under the trucks of the car and run over and killed, his body being horribly mangled and torn into several parts.
(7) Deceased "suffered the most terrible mental and physical pain before he died."
(8) Intestate's death was caused by the negligence of defendant, its agents and employees, in placing said arch brick and cinders within 2 1/2 feet of its track, where its switchmen would necessarily have to go in performing their work, thus making the track and roadbed of defendant, the place where deceased was to work, dangerous.
(9) Deceased worked from 9 p. m. to 5 a. m., and at all times while he was at work it was dark, and he could not see the clinkers and arch brick, did not know they were there, could not by the use of due diligence have discovered them, and did not know of the dangerous condition of the track and roadbed.
(10) At the time he was killed the deceased was 22 years old, in sound health, and had an...
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