Charleston & W.C.R. Co. v. Brown
| Decision Date | 31 October 1913 |
| Docket Number | 4,905. |
| Citation | 79 S.E. 932,13 Ga.App. 744 |
| Parties | CHARLESTON & W. C. R. CO. v. BROWN. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
This was an action against a railway company under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]) to recover damages for personal injuries. The case made by the petition was substantially as follows: The plaintiff was a locomotive fireman on the defendant's train, which operated daily between Georgia and South Carolina. At a point in South Carolina the track was being repaired, and, when the train upon which the plaintiff was employed approached, one of the track flagmen grabbed a flag of distress, and in an excited manner ran up the track of the railroad, met the train, and signaled it to stop; thereupon the engineer, after putting on the emergency brakes, jumped from the engine, and the plaintiff, seeing that the rails of the track ahead of the engine were out of line and "buckled," and believing that the train would be wrecked and his life be in peril, jumped from the engine, and in doing so sustained serious injury. It is alleged that the defendant was negligent in suffering its roadbed to get out of order and its rails to become "buckled," and in not placing a danger flag at a sufficient distance on its line from the place where the track was out of order, after the "buckled" condition of the track had been discovered, to have notified the employés on the engine of the danger, and thus have prevented the application of the emergency brakes and the apparent necessity for the plaintiff to jump from the engine. Held, that the petition was not subject to general demurrer, nor to demurrer upon the ground that the negligence complained of was not the proximate cause of the injury, nor was it essential to allege that the train actually ran off the track. The plaintiff did not complain of injuries sustained by reason of a derailment but complained of injuries resulting from his fall in consequence of the jump made necessary by an emergency brought about by the defendant.
The allegations of the petition showed that the plaintiff was engaged in interstate commerce, and the suit was properly brought under the federal Employers' Liability Act. Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. Supp. 1911, p. 1322). Under this act it is not essential for the plaintiff to show that he was free from fault. He was entitled to recover for the negligence of the defendant, and his own fault, if any, would not defeat but merely go in reduction of the damages.
The exception to the admissibility of documentary evidence, as set forth in the eighth ground of the motion for a new trial cannot be considered, because the document to which exception is taken is not set forth in the motion for a new trial either literally or in substance, nor is a copy attached thereto as an exhibit.
While, under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]), there is no presumption of negligence against the railway company in a case of this character, still failure of the judge in the present case to affirmatively charge the jury that there is no such presumption is no cause for a new trial.
The evidence authorized the verdict, which was not legally excessive, and the question as to whether the plaintiff's injuries resulted from his own negligence or from that of the defendant was fairly submitted to the jury, and there was sufficient evidence to support their finding in the plaintiff's favor.
No material error of law was committed, and the judgment overruling the motion for a new trial will not be disturbed.
(Additional Syllabus by Editorial Staff.)
The question whether a locomotive fireman was justified in jumping from his engine in an emergency depends upon whether he used ordinary care under the circumstances of the emergency presented to him, and not upon the true conditions as they may have appeared to other persons in a better position to ascertain the real facts.
Error from City Court of Richmond County; Wm. F. Eve, Judge.
Action by J. J. Brown against the Charleston & Western Carolina Railroad Company. Judgment for plaintiff, and defendant brings error. Affirmed.
W. K. Miller, of Augusta, for plaintiff in error.
H. C. Roney, of Augusta, for defendant in error.
Brown, the plaintiff in the court below, brought an action for damages, alleging that he was injured while employed as a fireman by the defendant who was alleged to be a carrier engaged in interstate commerce. He expressly planted his case upon the federal Employers' Liability Act of 1908 (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]), which provides that such a carrier shall be liable in damages to any person suffering injury while employed by the carrier in such commerce, resulting in whole or in part from the negligence of any of the officers, agents, or employés of the carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment. Of course, in such a case the burden of proving that the negligence of the employer was the proximate cause of the injury rests upon the plaintiff ( Bowers v. Southern Railway Co., 10 Ga.App. 367, 73 S.E. 677), and the doctrine that the servant assumes the risks ordinarily incident to his employment applies where the action to recover damages for personal injuries is based upon the federal Employers' Liability Act (under the same circumstances and conditions), just as it would apply if the action were proceeding under the statutes of this state.
In the case at bar the plaintiff's petition alleged that he was a locomotive fireman on a passenger train of the defendant, which ran daily from Augusta, Ga., into the state of South Carolina, and returned to Augusta. On the occasion under investigation the train upon which the plaintiff was a fireman left Spartanburg, S. C., at 12:30 p. m. for Augusta, and on the return trip reached Woodruff, S. C., and had passed that station a mile or two when the casualty which resulted in the plaintiff's injury occurred. The petition alleges that track hands were working on the line of the railroad, and that, as the train approached and was within a short distance from where they were working, one of the track workmen grabbed a flag of distress in a very excited manner, and ran up the railroad, meeting the train, and signaling the train to stop, and that thereupon the engineer, after putting on the emergency brakes, jumped from his engine, and the plaintiff, seeing that the rails of the track ahead of the engine were out of line and "buckled," and that apparently the train would be wrecked, and believing his life to be in peril, also jumped from the engine, and in jumping lost his footing and fell, and the fall broke the bones of his right hip, his collar bone, and two ribs. It is averred that the defendant was negligent in suffering its roadbed to get out of order and its rails to become "buckled," and in not placing a danger flag at a sufficient distance on its line from the place where the track was out of order, after this condition was discovered, to have notified the crew of the passenger train of the danger, and thus have prevented the necessity for applying the emergency brakes, and to have prevented the plaintiff's injury. The defendant demurred to the plaintiff's petition, the demurrer was overruled, and upon the trial the jury returned a verdict for the plaintiff. Exception was taken pendente lite to the judgment overruling the demurrer, and this exception, as well as that to the judgment overruling the motion for a new trial, is presented for our consideration by the bill of exceptions.
1. We find no error in the judgment overruling the demurrer. The petition was certainly sufficient to withstand the ground of the demurrer in which it was insisted that the petition failed to set out a cause of action, nor could the ground in which it was insisted that the negligence complained of was not the proximate cause of the injury be sustained, for, if the allegations of the petition were proved, the jury might be authorized to infer that the negligence of the defendant was the prime underlying cause of the injury suffered by the plaintiff, and that, though he might have been negligent in some respects, he would not have jumped or have been hurt but for the concurrent negligence of the servants of the company. Nor was it necessary for the plaintiff to allege that the train ran off the track. His case was not one of a person complaining that he was injured by reason of a derailment. The petition plainly alleged that the plaintiff was injured in jumping from the engine, and by reason of the fall consequent upon the jump. Therefore it is immaterial, so far as concerns his right to recover, whether the train remained upon the track or was derailed.
The petitioner alleged sufficient facts to authorize submitting to the jury the question...
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