Hepner v. Southern Ry. Co., 73096

Citation182 Ga.App. 346,356 S.E.2d 30
Decision Date20 February 1987
Docket NumberNo. 73096,73096
CourtUnited States Court of Appeals (Georgia)

William R. Moseley, Jr., Donald F. Ruzicka, Atlanta, for appellant.

Edgar A. Neely, Jr., Eric J. Spitler, Atlanta, for appellee.


Plaintiff Hepner appeals from the grant of defendant Southern Railway Company's motion for summary judgment. Hepner brought his complaint under the terms of the FELA (Federal Employers' Liability Act), 45 USCA § 51, alleging he was an employee of Southern; that while in the performance of his duties, loading frog plates on the bed of a truck, he suffered severe and debilitating pain in his back. His injuries were alleged to have resulted from Southern's negligence caused by Southern's employees, or by reason of defect or in Southern's failing to provide Hepner with reasonably safe equipment to perform the work, or by negligent failure of Southern to adequately supervise the manner and conditions of the work and labor, or by Southern's negligent failure to provide a reasonably safe place for Hepner to work. The complaint alleged Hepner suffered permanent injury to his back for which damages were sought, including pain and suffering, loss of earnings, loss of earning capacity in the future and expenses for medical treatment.

Southern answered and after discovery moved for summary judgment. The context out of which this controversy arose is hereafter summarized.

Hepner was a member of a track maintenance gang composed of a foreman and two co-workers. They drove to Culpepper, Virginia, and were instructed by the foreman to load a stack of frog plates onto the truck. The foreman then went into the office and remained absent while the three workers loaded the truck. Frog plates weigh between 30 and 40 pounds each. The workers began with the one on the top of the stack and as the truck became filled they started to lift the frog plates over their heads and throw them further up in the truck. At the bottom of the pile the frog plates were difficult to pick up and Hepner used his toe to raise one sufficiently to obtain purchase for lifting. He felt a "pulling" in his back while coming up with a frog plate--"I was lifting with my legs." He had not reached a full upright position. Although he had received no training specifically as to lifting frog plates, Hepner had been instructed as to the proper method for lifting, i.e., using his legs, and was using that method. Hepner told his co-workers that it felt like "I pulled something in my back." After loading, the team drove 15 miles to Orange, Virginia, where the frog plates were unloaded. At this time Hepner also felt pain and told his co-workers, but not his foreman, that he hurt his back. Hepner continued to work for about six weeks until in May the pain became such that he could not continue, at which point he notified the assistant track supervisor of Southern that his back was hurt but did not tell him it was a job injury.

A railroad company is not an insurer in a FELA case. Seaboard Coast Line R. Co. v. Thomas, 125 Ga.App. 716, 719, 188 S.E.2d 891 (1972). What the carrier must do is exercise reasonable care in view of the existing circumstances. Wilkerson v. McCarthy, 336 U.S. 53, 61, 69 S.Ct. 413, 417, 93 L.Ed. 497 (1949). What constitutes negligence in a particular situation is determined by common law rules as interpreted by federal decisions. Urie v. Thompson, 337 U.S. 163, 174, 69 S.Ct. 1018, 1026, 93 L.Ed.2d 1282 (1949). The carrier is required to take precautions commensurate with danger inherent in the situation and to exercise ordinary care proportionate to the consequences that might be reasonably anticipated from neglect. Harrison v. Mo. Pacific R. Co., 372 U.S. 248, 249, 83 S.Ct. 690, 9 L.Ed.2d 711 (1963); Urie, supra, 337 U.S. at 179, 69 S.Ct. at 1029. The railroad has a continuing and nondelegable duty to provide its employees with safe working conditions. Shenker v. Baltimore, etc., R. Co., 374 U.S. 1, 7, 83 S.Ct. 1667, 1671, 10 L.Ed.2d 709 (1963); Southern Ry. Co. v. Welch, 247 F.2d 340 (6th Cir., 1957).

The railroad must take all necessary and reasonable precautions to prevent injury to its employee when put on notice of his condition. Dennis v. Denver, etc., R. Co., 375 U.S. 208, 209, 84 S.Ct. 291, 11 L.Ed.2d 256 (1963). Such notice may be either actual or constructive. Shenker, supra, 374 U.S. 1, 8, 83 S.Ct. 1667, 1672; Georgia Southern, etc., R. Co. v. Meeks, 110 Ga.App. 143, 144, 137 S.E.2d 919 (1964). "Constructive notice is information or knowledge of a fact imputed by law because the fact could have been discovered by proper diligence and the situation was such as to cast upon a person the duty to inquire into it." Hamilton v. Edwards, 245 Ga. 810, 811, 267 S.E.2d 246 (1980). See Golden v. Nat. Life, etc., Ins. Co., 189 Ga. 79, 86, 5 S.E.2d 198 (1939). A comprehensive version of the test to determine a railroad's liability is found in Rogers v. Mo. Pacific R. Co., 352 U.S. 500, 506-8, 77 S.Ct. 443, 448-49, 1 L.Ed.2d 493 (1957): "Under this statute the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought. It does not matter that, from the evidence, the jury may also with reason, on grounds of probability, attribute the result to other causes, including the employee's contributory negligence. 1 Judicial appraisal of the proofs to determine whether a jury question is presented is narrowly limited to the single inquiry whether, with reason, the conclusion may be drawn that negligence of the employer played any part at all in the injury or death. Judges are to fix their sights primarily to make that appraisal and, if that test is met, are bound to find that a case for the jury is made out whether or not the evidence allows the jury a choice of other probabilities ... The burden of the employee is met, and the obligation of the employer to pay damages arises, when there is proof, even though entirely circumstantial, from which the jury may with reason make that inference." Accord Gallick v. Baltimore & Ohio R. Co., 372 U.S. 108, 116, 83 S.Ct. 659, 665, 9 L.Ed.2d 618 (1963).

Southern argues that there was no evidence that Hepner's injury resulted from its negligence. Reliance is placed upon this court's decision in Brooks v. Southern R. Co., 178 Ga.App. 361, 362, 343 S.E.2d 143 (1986) where the majority opinion recognized that the U.S. Supreme Court has upheld liability involving lifting. See Stone v. New York, etc., R. Co., 344 U.S. 407, 409, 73 S.Ct. 358, 359, 97 L.Ed. 441 (1952) which pointed out: "The likelihood of injury to men pulling or lifting beyond their capacity is obvious." Nevertheless, this court made the distinction that "[b]efore an employer may be held negligent and thus liable under the Federal Employers' Liability Act ... it must be shown that the employer knew or had reason to know that the employee was in a position of pulling or lifting beyond his capacity."

Southern urges the following points. 1) Frog plates are relatively "light," and there is no proof that Southern knew Hepner was lifting beyond his ability. 2) The evidence did not establish that the foreman needed to be constantly supervising the work, but if his absence could be considered as negligence it was of no consequence. The record shows Hepner was lifting properly when he felt the "pull," and there was nothing the foreman, even if present, could have done. Thus, Hepner's injury did not arise from any negligence on Southern's part.

In order for Hepner to recover, the jury must be able to answer affirmatively a series of questions which may be viewed as links necessary to forge a chain of negligence. On summary judgment, Southern need sever but one link by uncontradicted proof to absolve itself from liability. While the chain may be approached from either end a natural presentation of the questions which arise may be posited as follows. Was there a duty to supervise the employee while working? If so, could proper supervision have served to prevent the injury? Or, posed another way, did the failure to supervise contribute to the events leading to the injury here? Was an improper lifting technique used? If so, was the injury, at least partially, a result of such lifting or did it occur solely from utilization of proper lifting methods?

1. Southern failed to establish that a jury would have to give a negative answer to the first question.

Hepner introduced affidavits by a former foreman of Southern and a present foreman with Seaboard. The former Southern foreman, by affidavit and amendment thereto, affirmed: that he had supervised many crews assigned to perform heavy lifting, including frog plates; that it was Southern's policy for a foreman not to leave his crew to attempt a job unsupervised, and a foreman should always supervise laborers attempting to lift heavy objects because of the possibility of injury; that when he supervised laborers lifting heavy objects, including frog plates, he sought to insure proper manpower, lifting methods, machinery and allocation of lifting responsibility. The Seaboard foreman basically reiterated what was stated by the other foreman, relating that lifting heavy objects poses a high risk of injury to laborers; that injuries result from unsupervised lifting due to improper lifting methods, failure to allocate lifting responsibility, improper utilization of machinery, or inadequate manpower.

An affidavit may be considered even if conclusions are intermingled with facts. Planters Rural Tel. Co-op v. Chance, 108 Ga.App. 146, 147(2), 132 S.E.2d 90 (1963); Vickers v. Chrysler Credit Corp., 158 Ga.App. 434, 440(4), 280 S.E.2d 842 (1981). Furthermore, opinion evidence by the nonmoving party can be sufficient to preclude an award...

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