Louisville & N.R. Co. v. Maffett
| Decision Date | 28 February 1927 |
| Docket Number | 17356. |
| Citation | 137 S.E. 404,36 Ga.App. 513 |
| Parties | LOUISVILLE & N. R. CO. et al. v. MAFFETT. |
| Court | Georgia Court of Appeals |
Error from Superior Court, Fulton County; E. D. Thomas, Judge.
Action by U. G. Maffett against the Louisville & Nashville Railroad Company and others. Judgment for plaintiff, and defendants bring error. Affirmed.
McDaniel & Neely and Rembert Marshall, all of Atlanta, for plaintiffs in error.
R. R. & Lowry Arnold, of Atlanta, for defendant in error.
Syllabus OPINION.
1. Where one's duty requires him to act as hostler and to take an engine from the roundhouse through the railroad yards and leave it upon a track in readiness to be taken charge of by an engineer and used for the purpose of drawing a train of cars from this state into another state, and where his duty also requires him, after so doing, to return by foot through the yards across the tracks to the roundhouse for the purpose of receiving further orders, both the act of taking out the engine and depositing it where required, for the purpose of being used in interstate commerce, and the act of returning to the roundhouse, are inseparable and indivisible and constitute one task, and he, when returning from the roundhouse, is engaged in interstate commerce. This ruling is not in conflict with the case of Erie R. Co. v Welsh, 242 U.S. 303, 37 S.Ct. 116, 61 L.Ed. 319, where it was held that the determination of the question whether a conductor was engaged in interstate commerce when, after having taken a car and left it on a track in the yard for the purpose of being taken and used in interstate commerce, he was returning on the engine, which afterwards went to take water and then slowed down near the yardmaster's office so as to enable him to report for further orders, depends upon whether, when returning, "he was performing an act so directly and immediately connected with his previous act of placing the interstate car in the '*** yard' as to be a part of it or a necessary incident thereto," and "whether the series of acts that he had last performed was properly to be regarded as a succession of separate tasks or as a single and indivisible task." In support of this ruling, see Erie R. Co. v. Winfield, 244 U.S. 170 173, 37 S.Ct. 556, 61 L.Ed. 1057, Ann.Cas. 1918B, 662; Director General of Railroads v. Bennett (C.C.A.) 268 F. 767; Van Buskirk v. Erie R. Co. (C.C.A.) 279 F. 622; Anderson v. Director General of Railroads, 94 N. J. Law, 421, 110 A. 829.
2. A petition which alleges that a certain practice on the part of the defendants was customary, and that ordinary care on their part required the performance of the acts which were practiced and which were customary, is not duplicitous. In a suit against railroad companies to recover damages for personal injuries alleged to have been received by the plaintiff, a paragraph of the petition, wherein it is alleged that it was the custom and the practice in the defendants' yards that, before an engine should move or couple up cars upon the track on which the plaintiff was injured, an employee of the switching crew about to move the cars should notify all persons about to cross the tracks that the cars were about to be moved, and that ordinary care on the part of the defendants required that such practice and custom be maintained, is not duplicitous.
3. Where the petition in such a case alleges that the plaintiff, while in the discharge of the duties of his employment, working in a railroad yard, when crossing a track behind some cars, was injured by the cars being suddenly kicked upon him and mashing him against a stationary object on the track by the impact of an engine at the other end that was endeavoring to make a coupling, an allegation that the crew of the engine that moved the cars that hit the plaintiff was negligent as respects signaling to the engineer before the train hands had arranged for the coupling, was, when taken in connection with all the allegations in the petition, a relevant and material allegation of negligence. The facts alleged could be considered by the jury, not only as constituting proximate cause of the plaintiff's injury, but also as illustrating the degree of care exercised by the plaintiff in going behind the cars, which, according to the other allegations of the petition, the plaintiff was authorized to believe would not, in view of the customary manner employed by the defendants in coupling cars, be kicked back upon him.
4. Where the court in his charge clearly instructed the jury that what constituted negligence on the part of the defendants, and...
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