Louisville & N.R. Co. v. Barrett

• Decision Date: 21 July 1915
• Docket Number: 470.
• Citation: 85 S.E. 923,143 Ga. 742
• Parties: LOUISVILLE & N. R. CO. ET AL. v. BARRETT.
• Court: Georgia Supreme Court

85 S.E. 923

143 Ga. 742

LOUISVILLE & N. R. CO. ET AL. v. BARRETT.

No. 470.

Supreme Court of Georgia

July 21, 1915

Syllabus by the Court.

Where a widow institutes an action against a railroad company for the homicide of her husband, and the petition alleges facts sufficient to show a cause of action under the state law, and makes no reference to any engagement of the deceased person in interstate commerce, and the defendant files an answer which merely denies "as untrue" the several paragraphs of the petition, such denial does not extend beyond a denial of the facts specifically alleged.

(a) Where in such an action the defendant desires to defeat the widow's right to sue, by proof of facts tending to show that at the time of the catastrophe her husband was engaged in interstate commerce under his employment by the defendant it is incumbent upon the defendant to specifically plead such new facts.

(b) In the absence of such a plea it is not erroneous to repel evidence relied on to show that the plaintiff's husband was engaged in interstate commerce under his employment by the defendant, on the ground that the plea does not raise such question.

In this case it was shown that at the time of the homicide the plaintiff's husband was on duty, under his employment by the defendant, as a watchman at a grade crossing where the railroad tracks crossed a street in a city. The only duty of the watchman appears to have been to protect travelers on the street from the danger of injury by trains on the crossing. At the time of the catastrophe he was engaged in warning travelers on the street of the approach of a freight train coming from the south, when a passenger train on a parallel track approaching unobserved by him from the north, struck and killed him. The passenger train plied between Tate, Ga and Atlanta, Ga. The freight train plied between Atlanta Ga., and Etowah, Tenn., and carried freight for intermediate points in Georgia, but it was not shown to have carried freight to points beyond the limits of the state. Held, that the evidence was insufficient to show that the plaintiff's husband was engaged in interstate commerce; and there was no error in refusing to charge the jury that as a matter of law he was so engaged, and that for such reason the plaintiff could not recover.

The evidence concerning the employment of the watchman and his duties was not of such character as to demand a finding that he assumed the risk of danger to himself from the defendant's negligent operation of its trains at the crossing; and the charge, which in effect submitted to the jury the question whether the watchman assumed the risk of the danger which resulted in his death, constituted no error of which the defendant could complain.

The evidence was sufficient to make out a prima facie case, and there was no error in overruling the motion for nonsuit.

The blow-post law being applicable, an instruction that "You are to take into consideration all the facts and circumstances in the case, the place where the occurrence took place, its publicity, the amount of travel across the railroads at that place, the amount of care and caution which these required of the defendants, that they be on the lookout and to have their locomotives under control, the diligence or want of diligence shown to have been exercised in respect to these matters at this time and place"--was not erroneous on the ground that it invaded the province of the jury, in that in effect it instructed them that it was the duty of the defendants to "be on the lookout and to have their locomotive under control."

This being an action against a railroad company for the homicide of one of its employés, alleged to have been committed by the negligence of the servants of the defendant in the operation of one of its trains, it was erroneous to charge the jury, as applicable to the case, the provision of Civ. Code 1910, § 2780, relating to the statutory presumption against railroad companies arising in such cases upon proof of injury.

(a) The evidence did not demand a verdict for the plaintiff, and the error in the charge was sufficient to require the grant of a new trial.

Error from Superior Court, Cobb County; H. L. Patterson, Judge.

Action by Mattie Lou Barrett, administratrix, against the Louisville & Nashville Railroad Company and others. Judgment for plaintiff, and defendants bring error. Reversed.

D. W Blair and C. H. Griffin, both of Marietta, for plaintiffs in error.

Clay & Morris, of Marietta, for defendant in error.

ATKINSON J.

1. In this case a widow instituted an action against a railroad company for damages on account of the homicide of her husband, who was alleged to have been killed by a train on the defendant's railroad while he was engaged as watchman at a grade crossing in a city, under employment of the defendant, to warn travelers on the highway of the approach of trains. A verdict having been rendered for plaintiff, the defendant made a motion for new trial, and excepted to the judgment denying the motion. In one ground of the motion complaint is made of the exclusion of certain evidence offered by defendant and relied on to show that at the time of the catastrophe the defendant, as a common carrier, was engaged in interstate commerce, and that when plaintiff's husband was killed he was, under his employment by the defendant, engaged in such commerce. Whether the excluded evidence would have been sufficient to show that he was so engaged need not be decided. The evidence was repelled on the ground that the plea of defendant did not authorize the introduction of evidence on that subject. There was no error in this ruling. When the case was before this court on a former occasion (Barrett v. Louisville & Nashville R. Co., 137 Ga. 572, 73 S.E. 837), it was held that the petition set forth a cause of action. That decision dealt with the petition under the viewpoint of the statute. There was no allegation in the petition to the effect that defendant was engaged in interstate commerce, or that plaintiff's husband was so employed. The facts relied on as a basis for the cause of action were set forth in separate and distinct paragraphs, as required under prescribed rules of practice for that court. Civil Code, § 5539. The answer contained no reference to the first paragraph of the petition, but mentioned all of the other paragraphs by number, and, with reference to them merely said they "are each and all denied as untrue." In Civil Code, § 5634, it is declared:

"In all cases when the defendant desires to make a defense by plea or otherwise, he shall therein distinctly answer each paragraph of plaintiff's petition, and shall not file a more general denial, commonly known as the plea of 'general issue.' He may in a single paragraph deny any or all of the allegations, or in a single paragraph admit any or all of the allegations in any or all of the paragraphs of the petition."

Under this law the plea by defendant did not extend beyond a denial of the truth of the allegations of fact made in the petition. To hold otherwise would be to declare of no effect the provision prohibiting the filing of a "general denial, commonly known as plea of 'general issue.' " While a widow is authorized to sue under the state law, the right to sue under the federal Employers' Liability Act (Act April 22, 1908, 35 U.S. Stat. 65, c. 149 [U. S. Comp. St. 1913, §§ 8657-8665]) is in the legal representative of the deceased person. There are other differences between the state law and the federal law, which need not be mentioned. The court, having jurisdiction to try a case against a railroad company for the homicide of one of its employés, would apply the state law or the federal law accordingly as it might legitimately appear that the employé, at the time of the injury, was engaged in intrastate or interstate commerce. Illinois Cent. R. Co. v. Doherty, 153 Ky. 363, 155 S.W. 1119, 47 L.R.A. (N. S.) 31; Mo., Kan. & Tex. R. Co. v. Wulf, 226 U.S. 570, 33 S.Ct. 135, 57 L.Ed. 355, 32 Ann.Cas. (1914B) 134. In the case of Gainesville Midland Railway v. Vandiver, 141 Ga. 350, 80 S.E. 997, it was said:

"In pleading a cause of action, where a domestic statute or that of the United States is relied on, it is unnecessary to incorporate in the pleadings a statement of the law upon which the cause of action is based. If it is incorporated, the reference thereto may be stricken as surplusage."

Also:

"In an action for damages against a railroad company for personal injuries to an employé, where the petition sets forth the relation between the injured person and the railroad company, and describes the circumstances under which the injury occurs, making out a case of negligence upon the part of the defendant, but contains no allegation that the defendant was engaged in interstate commerce at the time of the injury, the petition is amendable by setting forth allegations to that effect."

While it was ruled, in the case cited above, that it was unnecessary under the circumstances to specially plead the statute, it was not ruled that it was unnecessary to plead facts which might be relied on to show that the case fell within the operation of one statute or the other. Owing to the difference between the state statute and the federal statute and the circumstances under which the one or the other should be applied, facts of this character go to the substance of the case, and cannot be judicially recognized as can be the substance of the statutes. Upon examination of the allegations of the petition in connection with the denial set up in the answer, as already observed, while there was an issue between the parties as to liability under the state law, there was no suggestion of an issue as to liability under the federal...