Howard v. Atlantic Coast Line R. Co.

• Decision Date: 22 June 1951
• Docket Number: No. 1,No. 33484,33484,1
• Citation: 84 Ga.App. 307,66 S.E.2d 87
• Parties: HOWARD v. ATLANTIC COAST LINE R. CO
• Court: Georgia Court of Appeals

Page 87

66 S.E.2d 87

84 Ga.App. 307

HOWARD v. ATLANTIC COAST LINE R. CO.

No. 33484.

Court of Appeals of Georgia, Division No. 1.

June 22, 1951.

Rehearing Denied July 12, 1951.

Syllabus by the Court

Under the evidence and the law applicable thereto the trial judge did not err in directing the verdict for the defendant, or in overruling the plaintiff's motion for a new trial.

Benjamin Zeesman, Cordele, for plaintiff in error.

Matthews, Long & Moore, Atlanta, Jay, Garden & Jay, Fitzgerald, E. F. Strozier, Cordele, for defendant in error.

SUTTON, Chief Judge.

George W. Howard sued the Atlantic Coast Line Railroad Company for damages for personal injuries under the Federal Employers' Liability Act, 45 U.S.C.A., § 51, in the Superior Court of Crisp County. His petition alleged substantially that he was employed in interstate commerce as a yard foreman in charge of switching for the defendant railroad in Cordele; that he was in charge of a switch engine and its engineer and fireman, when he was injured at the crossing of the defendant's tracks with Second Street in Cordele, at about noon on January 2, 1947; and Second Street runs north and south, and the railroad crosses it in an east and west direction; that the switch was approaching the Second Street crossing from the east and was backing up with the plaintiff riding on the footboard of the tender, that is, facing in the direction in which the engine was moving; and that the engine was proceeding at a speed of four miles per hour, when a taxicab belonging to P. H. Pate and operated by one Allison approached the crossing from the north without slowing down or stopping and drove onto the crossing in front of the locomotive, where the locomotive collided with it, crushing the plaintiff's foot.

The plaintiff's injuries and damages were set out, and it was alleged that the defendant was negligent (a) in the failure of its employees to keep a vigilant lookout as required by law; (b) in the failure of its engineer to apply the brakes on impact with the taxicab; (c) in failing to maintain in good repair and workable condition a device known as an angle cock, by which the air brakes may be applied from the rear of the tender; (d) in failing to maintain traffic bars, or a watchman in lieu thereof, at the crossing; and (e) in allowing the plaintiff only a skeleton crew, short two switchmen, and it was alleged that the defendant's negligence was the proximate cause of the plaintiff's injuries.

The defendant railroad company answered, denying responsibility for Howard's injuries, or that his injuries resulted from any negligence on the part of the employees of the railroad other than the plaintiff. The railroad company further set up in its answer that the injuries sustained by Howard were caused solely by the negligence of Howard himself and Allison, the driver of the taxicab. It was alleged that Howard was negligent (a) in that at the time of the collision, Howard was riding the footboard on the rear of the switch engine while it was proceeding backward, and that this act on his part was in violation of orders given by the defendant's general superintendent on June 20, 1946, which had been directly communicated to Howard and were known to him; (b) in failing to step off the footboard of the moving locomotive before the taxicab was driven into it; (c) in failing to warn the engineer and to order him to stop the engine when it became apparent that the taxicab would collide with the locomotive; and (d) in failing to ride on some other portion of the locomotive while it was backing up.

By way of further plea, the defendant alleged that on May 29, 1947, Howard had filed suit against P. H. Pate, the owner of the taxicab, for the damages sustained as the result of the same injuries and based upon the same circumstances as the present action, and had recovered judgment therein, which had been partially satisfied through receivership proceedings against Pate's insurer. These facts were stipulated by the parties to the present action.

On the trial of the case, the plaintiff offered his own testimony and rested. The railroad company offered the testimony of its engineer and the fireman, who were on the engine involved in the collision, of a civil engineer, of its trainmaster, and of other employees who had inspected the engine before and after the collision. The evidence disclosed the following facts without dispute: The plaintiff had been employed for about twenty-six years as a switchman and yard foreman by the defendant railroad company, which was engaged in interstate commerce. He was in charge of an engineer and a fireman, directing their operation of a switch engine. It was also Howard's duty to do the work of a switchman on the ground, that is, coupling and uncoupling cards, throwing switches, and setting handbrakes. Second Street in Cordele runs in a north-south direction, and the defendant's main line crosses it at an angle from slightly south of east to north of west. To the east of the Second Street crossing, a passing track first switches off the main line, and then a scale track runs off the passing track and parallel to it. Shortly before noon on January 2, 1947, the plaintiff and the engineer and the fireman placed a cut of cars on the scale track, with the engine moving forward to the east, pulling the cars behind it. The cars were uncoupled by the plaintiff, and the engine again moved forward until it was switched back onto the passing or middle track. The engine was backed to the west until it came upon the main line track. It was stopped with its pilot or front end just west of the switch where the passing track joined the main line. The switch engine with its tender was about 60 feet long, and the rear of the tender was then about 150 feet or two and a half lengths of the locomotive and tender from the center of the Second Street crossing. The rear of the tender was then visible for 210 feet north along Second Street, around a house on the east side of the street some 150 feet north of the main line tracks. This was the only obstruction to the view at the crossing.

Howard threw the main line switch, walked along the south side of the engine, and climbed onto the footboard at the rear of the tender. He signalled the engineer to back the engine toward the Second Street crossing. The engine, moving at 4 miles per hour, collided with the taxicab which was traveling from north to south on Second Street. The locomotive pushed the automobile for about 30 feet, or half the length of the locomotive and tender, before it stopped. The plaintiff's foot was caught between the back of the footboard and the taxicab.

The trial judge directed a verdict for the defendant at the close of the evidence. The plaintiff made a motion for a new trial on the general grounds and assigned error on the direction of a verdict. The motion was overruled and the plaintiff excepted.

1. The controlling question for determination in this case is whether the evidence raised an issue of fact for the jury as to the defendant's alleged negligence. We will therefore examine the evidence in connection with the allegations of negligence against the defendant.

(a). There was only an inference, from the fact that the collision occurred, that the engineer and the fireman failed to keep a lookout for the taxicab. Howard testified that he could not have seen the engineer and the fireman from the footboard of the tender of the locomotive where he was standing, and the engineer and the fireman testified that he was not visible to them in his position. The fireman, sitting on the north side of the locomotive, from which direction the taxicab was approaching, testified as follows, in part: 'As we backed up I saw a vehicle on Second Street. The automobile was about 300 feet [away] when I noticed it. The automobile was coming south. When I first noticed it [auto] he was going 25 to 30 miles per hour. It was a dry day and I saw the dust and as it approached the crossing it looked like he was going to slow up, but as he got to the crossing he looked like he dropped his head down and crossed the crossing. When I saw him drop his head, I hollered at Mr. Peavy (engineer) to stop. * * * About 15 or 20 feet from the crossing I saw he was not going to stop and I hollered to the engineer to stop. * * * I did not have the engineer throw on his brakes--not until he [the taxicab driver] got within 15 to 20 feet of the crossing. I was under the impression that he [the taxicab driver] was looking at me and I was looking right at him and there was nothing to keep him from seeing me.' This positive testimony rebuts any inference of a failure of the fireman to keep a vigilant lookout for the taxicab, arising from the fact that a collision occurred.

The engineer, who was on the south side of the engine, away from the approaching taxicab, testified that he looked for automobiles approaching from the south on Second Street, saw none, and then continued to look toward the rear of the engine, in the direction it was moving. His view to the north along Second...