Louisville & N. R. Co v. Kemp

• Decision Date: 02 October 1913
• Citation: 140 Ga. 657,79 S.E. 558
• Court: Georgia Supreme Court
• Parties: LOUISVILLE & N. R. CO. v. KEMP.

79 S.E. 558

(140 Ga. 657)

LOUISVILLE & N. R. CO.

v.KEMP.

Supreme Court of Georgia.

Oct. 2, 1913.

(Syllabus by the Court.) 1. Commerce (§ 27*)—Employers' Liability

Act—Employes Engaged in Interstate

Commerce.

The uncontradicted evidence in the case shows that the plaintiff, at the time he received the injuries complained of, was engaged in interstate commerce; and the charge of the court to the jury upon this question was not error.

[Ed. Note.—For other cases, see Commerce, Cent. Dig. § 25; Dec. Dig. § 27.*] 2. Master and Servant (§§ 265, 278*)—Injuries to Servant—Burden of Proof-Evidence.

There was no evidence in the case to support the allegations of the petition showing negligence upon the part of the defendant railroad company or its employes, and the verdict was unauthorized by the evidence.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 877-908. 954-958, 960-969, 971, 972, 977; Dec. Dig. §§ 265, 278.*]

3. Master and Servant (§ 291*)—Commerce (§ 8*)—Instructions—Federal Act Superseding State Statute.

The court erred in giving in charge to the jury the provisions of the state statute raising a presumption against the railroad company upon proof of injuries by the running of its locomotives or cars.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 1133, 1134, 1136-1146; Dec. Dig. § 291;* Commerce, Cent. Dig. § 5; Dec. Dig. § 8.*]

Error from Superior Court, Gordon County; A. "W. Fite, Judge.

Action by James Kemp against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed.

O. N. Starr, of Calhoun, Tye, Peeples & Jordan, of Atlanta, and D. W. Blair, of Marietta, for plaintiff in error.

Geo. F. Gober, of Atlanta, for defendant in error.

BECK, J. This was an action under federal Employers' Liability Act April 22, 1908, 35 Stat 65, c. 149 (U. S. Comp. St. Supp. 1911, p. 1322), to recover for personal injuries sustained by the plaintiff through the negligence of the defendant and the coein-ployes of the plaintiff. It was alleged as follows: The defendant, the Louisville & Nashville Railroad Company, a railroad corporation of the state of Tennessee, operates a line of railroad in Georgia, in Tennessee, and in other states. The plaintiff was in the employment of the defendant as a foreman of a section of its railroad, and had charge of a force of section hands and track hands employed by the defendant in and upon that section. His duty required him to inspect and maintain the track and roadway upon said section. On the 22d day of May, 1909, in pursuance of orders received, he started over the section to inspect the track and roadbed, and in carrying out said order he placed a hand car upon the track, and with said hands in his charge thereon proceeded along the track, preceded by a flagman whose duty it was to give warning to approaching trains of the proximity of the hand car and to warn the hand car occupants of approaching trains. When they had proceeded some distance along the track, a freight train, not on schedule time, and running at a high and dangerous rate of speed, approached the hand car, and, without slackening speed, continued to approach, endangering the lives of plaintiff and the hands with him, placing them in an emergency calling for prompt action. To prevent a collision the plaintiff and his hands removed the car from the track. It was heavy and unwieldy, and required the utmost effort and energy on the part of plaintiff and the hands to remove it. In removing the car the plaintiff strained and exerted himself, and was injured by the negligent handling of the car by the hands under him; they lifted the car too much on one side and pushed it too far towards the side on which plaintiff was, and caused it to turn over, thereby injuring him in a manner specifically described in the petition. Negligence was charged also in that the flagman who preceded the car did not warn the freight train of the proximity of the same, and did not give warning to those on the hand car, that the employes in charge of the freight train ran it at a dangerous rate of speed, to wit, 50 or 60 miles an hour, and that they were negligent In running by and passing the flagman, and in not stopping the train, seeing the proximity of the hand car. The freight train was engaged in interstate commerce, handling freight from points in various states to points in this and other states; and the track upon which plaintiff and the section hands were working was for the passage of interstate trains as well as for intrastate trains.

1. The evidence sustained the allegations of the petition to the effect that at the time the plaintiff received the injuries complained of he was, with a force of hands in his charge, in pursuance of an order received from the proper authorities of the road, going over the track, making an inspection of the entire roadway of his section, roadbed and waterways, that the freight train, in consequence of the alleged negligent running of which he was injured, was engaged in interstate commerce, and that the railway track over which the freight train was being operated was used in both interstate and intrastate commerce. Consequently, under the ruling in the case of Pedersen v. Delaware, etc., Railroad Co., 229 U. S. 146, 33 Sup. Ct. 048, 57 L. Ed. 1125, the plaintiff was engaged in interstate commerce at the time of receiving the alleged injuries of which he complained.

2. While, under the provisions of the employers' liability act referred to above, contributory negligence upon the part of an injured employe does not bar a recovery, before the injured employe¹ can establish liability for...