Charleston & W. C. Ry. Co v. Sylvester

• Decision Date: 11 September 1915
• Docket Number: (No. 6222.)
• Citation: 17 Ga.App. 85,86 S.E. 275
• Court: Georgia Court of Appeals
• Parties: CHARLESTON & W. C. RY. CO. v. SYLVESTER.

86 S.E. 275

17 Ga.App. 85

CHARLESTON & W. C. RY. CO.

v.SYLVESTER.

(No. 6222.)

Court of Appeals of Georgia.

Sept. 11, 1915.

(Syllabus by the Court.)

eral statutes for the protection of employes, asRussell, C. J., dissenting.

Error from City Court of Richmond County; W. F. Eve, Judge.

Action by S. L. Sylvester, as administrator, against the Charleston & Western Carolina Railway Company. There was judgment for plaintiff, and defendant brings error. Reversed.

W. K. Miller, of Augusta, for plaintiff in error.

Henry C. Roney, of Augusta, for defendant in error.

BROYLES, J. S. L. Sylvester, as administrator of B. T. Yarborough, brought his suit against the Charleston & Western Carolina Railway Company, under the federal Employers' Liability Act, to recover damages for the death of Yarborough. The petition alleged:

That Yarborough, at the time of his death, was in the employ of the company in the capacity of a switchman. His duties were to switch freight trains in the yard of the company, and to assist in transferring loaded freight cars from the tracks of the com-pany to the tracks of other carriers. On June 14, 1912, a train of freight cars, loaded with freight, arrived at the yard, late in the afternoon, from the state of South Carolina. Several cars of this train were to be cut out and forwarded to other lines of railway, to be transported to their destination, and it became his duty to uncouple the cars, so that they could be switched to other tracks in the yard, and thence be forwarded as aforesaid. It was near the time for the train crew to stop work, and the cutting out of the cars from the train was done in a rush and a hurry. As switchman he was required to uncouple and assist in switching the cars attached to the train. He was required to uncouple a car from it at some distance from the engine, and afterward, in pursuance of his duties, he had to cross the track and change a switch, so as to place the remaining cars attached to the engine on to another track. He was required to uncouple the car while the train was slowly in motion, so that the car, when uncoupled, would roll down the track, and the train would then be stopped until the switch was turned. He gave a signal to the engineer that he had uncoupled the car, and for the train to be stopped before the switch was reached, and the engineer saw the signal. As the uncoupled car was released from the train, he (Yarborough) believing that the train of cars attached to the engine would stop before the switch was reached, as it should have [been] done by the engineer, started across the track to the switchstand to turn the switch, as his duty required him to do; but, while crossing the track, the train of cars suddenly and unexpectedly came back and caught him upon the track, knocked him down, and terribly mangled his body, so that, from the injuries thus received, he died upon the following morning. The train passed over his body a car or half a car's length beyond the switch before It was stopped. The train was equipped with air brakes, and the engineer thereon, after receiving the signal of Yarborough to stop the train, should have done so, and could have done so by the exercise of ordinary care and diligence, but carelessly and negligently failed to stop the train, and Yarborough was run over and killed.

At the place where Yarborough was run over and killed, the roadbed, between the rails of the company, was in a defective condition. The said yard was a comparatively new one, and the roadbed had never been leveled. When the yard was surveyed, the surveyor's stobs, driven in the roadbed, had not been removed therefrom, and were impediments in the crossing of the track. During the year 1912 there was a freshet, and the tracks of the company were covered with water for some time, and the roadbed was rough and uneven. Clods of dirt, hardened by the sun, protruded between the rails, of uneven height; and the rails were held in place by anchor bars and fishplates, thus rendering it unsafe for employes of the company to cross the track while engaged in their work. Owing to this condition of the roadbed, while attempting to cross the track, Yarborough stumbled over the said obstacles in the roadbed which were in his way, fell across the track, and was run over and killed by the train as aforesaid But for said obstructions he could and would have safely crossed the track and escaped being injured. "The cars to be cut off from said train of cars and to be delivered to other carriers required haste, " and the engineer and fireman of said train were hurrying to get off from work. Yarborough, in haste, while crossing the track, was so engaged in his work, and so engrossed in the performance of his duties, that he could not stop to inspect the condition of the roadbed; and even if he had known of its condition beforehand, so fixed and intent was his mind upon his business that he could not have remembered its then condition. At the time of the homicide he was in the exercise of ordinary care and diligence, was without fault, and could not have avoided the homicide by the exercise of ordinary care and diligence. He was...