Parker v. Southern Ry. Co

• Decision Date: 11 October 1941
• Docket Number: No. 29152.,29152.
• Citation: 17 S.E.2d 750
• Parties: PARKER. v. SOUTHERN RY. CO.
• Court: Georgia Court of Appeals

17 S.E.2d 750

PARKER.

v.SOUTHERN RY. CO.

No. 29152.

Court of Appeals of Georgia,

Division No. 2.

Oct. 11, 1941.

Rehearing Denied Nov. 19, 1941.

Second Motion for Rehearing Denied Dec. 4, 1941.

Syllabus by the Court.

Under the facts of this case the court erred in finding that the operation of the defendant's train in South Carolina did not involve a transaction which bore a direct relation to its business in Georgia, and in sustaining the plea to the jurisdiction, and in dismissing the action.

Error from Superior Court, Fulton County; A. L. Etheridge, Judge.

Action by T. E. Parker against the Southern Railway Company for personal injuries. Judgment of dismissal, and plaintiff brings error.

Reversed.

T. E. Parker sued the Southern Railway Company in the superior court of Fulton County for an alleged tort. The petition alleged that at the time the suit was filed the plaintiff was a resident of Atlanta, Georgia; that the defendant was engaged in interstate commerce; that on or about September 9, 1938, the plaintiff was a switchman, employed by the defendant at Greenville, South Carolina, and that on that date he was assisting in the movement of a car which was loaded with merchandise which was consigned to some one at Oakland City, Georgia; and that the plaintiff was injured in connection with the movement of this car. The defendant filed a plea to the jurisdiction in which as amended it was alleged that the plaintiff was a non-resident of the State of Georgia; that the suit was based on no transaction connected with the business of the defendant performed in Georgia, and that for the court to take jurisdiction would violate the fourteenth amendment to the Constitution of the United States because the State of Georgia would thereby deprive the defendant of property without due process of law, because the courts of Georgia do not have jurisdiction of such a cause of action as is claimed in this suit. It was stipulated that the defendant was chartered under the laws of the State of Virginia; that the occurrence in which the plaintiff was injured took place in South Carolina, and that the judge should try all the issues of law and fact without the intervention of a jury. The plaintiff introduced in evidence paragraphs 8 and 9 of the petition and paragraph 7 of the answer, which were as follows: "That, among other things, defendant had provided said coal-chute track at said point for the purpose of unloading coal therefrom into the space underneath, which coal was transported into South Carolina from points without the State, and said track was an instrumentality of interstate commerce. That at the time and place in question defendant was engaged in, interstate commerce and petitioner was employed in such commerce." "Defendant admits the allegations of paragraphs 8 and 9 of the petition." The judge found that the plaintiff, at the time of the injury and at the time of the filing of the suit was a resident of South Carolina; that at the time and place of the injuries the defendant and the plaintiff were engaged in interstate commerce; and that that action was a transitory cause of action over which the courts of Georgia did not have jurisdiction; sustained the plea to the jurisdiction and dismissed the action. The plaintiff filed direct exceptions.

Hewlett & Dennis and T. F. Bowden, all of Atlanta, for plaintiff in error.

Neely, Marshall & Greene, Edgar A. Neely, Jr., and W. Neal Baird, all of Atlanta, for defendant in error.

FELTON, Judge.

The person acting as yard conductor on the date of the injuries testified:

"I saw the Southern car on that track. When we backed in there I picked it up and headed out. I coupled the rear of the engine to it. I backed up about 60 feet to the coal-chute track with this car, and we went into the coal chute with it. When we went into the coal-chute track we could see some cars on the coal-chute track. We could not tell what cars were on there. I don't recall whether I told my field man or my engine man the number of it. I found out what cars were on there. The car I went after, the Rock Island and a Frisco car, was on the coal-chute track. The car I wanted was the rear car. In other words the car that I did not want was the middle car. I went in there and coupled up those two cars. When I say the rear car, I mean the Rock Island car was the car we wanted, and it was near the end of the coal trestle and the 'Frisco car was on the end next to the house lead. We had no orders on the 'Frisco car. As to what is our practice where we don't have any orders, when we find a car on a siding connected in a cut of cars we want, well, we cut the car we want out of there and put the other cars back where we find them; we don't bother those cars unless we have orders to do so. I backed into the coal-chute track with the car that I had gotten from the cloth-room track, that was the Southern car, and headed back out the lead, and set one out; in other words, I shoved it out and cut it off. The car we wanted was a Rock Island car. We backed south on the lead and set it direct north on the main line. I headed back out the lead. My engine was headed south. We backed up and left the Rock Island car on the lead somewhere north of this coal-trestle switch. That put our engine next to the 'Frisco car. After we set this car out, I stayed there. We have to book these cars. We have to put them on the yard book. We have to get the number of the car and turn this book in at night for a yard record. That is what I was doing. And sometimes I have known them to roll back there; they have a sort of slant, and they will roll back there. This track where this car was sitting is on a slant. I mean it has gravity; it is on a slant and you have to watch them or check them to keep them from rolling back; and I stayed with the Rock Island car and booked it while the others shoved this other car back into the coal-trestle track. The purpose of goingback into the coal-trestle track was to carry this car that I had nothing on, to shove it back to the platform where we got it. I mean the 'Frisco. You see, I did not have anything on that. I do not know whether it was a load or empty. I shoved the 'Frisco car back onto the trestle track where I found it, and left it there. That movement from the switching of that 'Frisco car back on to the coal-trestle track was the movement in which Mr. Parker claims to have been injured. I did not see it. After the movement was completed the 'Frisco car was cut off and left at the end of the trestle track, and then the engine pulled out and headed south, headed back out with the Southern car.

"Well, we got out on the lead and Mr. Palmer, that was a switchman, signalled for me to come around and told me that Mr. Parker had fell, and I lit out around there as fast as I could go. Assuming that that is all over with and everything had happened, and get back to our next movement as we got in that trestle track, I pulled back out and got on the lead again. After that we caught the Rock Island car that we had kicked out with the Southern car and headed back down the lead. We coupled the Rock Island car with the Southern car. We had the Southern car coupled to the engine all the time, and after coupling with the Rock Island I carried them back to the yard and headed back across this same crossing that I came to when I went up there and put them in No. 1 track in the yard. We have tracks numbers 1, 2, 3, 4, etc., and this No. 1 track is next to the southbound main line, and I cut the cars off and left them there and notified the yardmaster. I had nothing to do with putting them into a train. * * * If I had gone and gotten that Southern car and I had not wanted to carry it around with me, in order to get hold of the Rock Island car, I would have had to make an extra switch and shove it towards the northbound, and I would have had to shove it up there and cut it off and headed back down and backed in. We figure on time in switching, you see. That would have been quite a bit of extra work to do that, extra switching. I could have gotten it and carried it down three quarters of a mile and come back. So much time would have been used I would not have got to have went back. It was necessary for me to couple on that Southern car in order for me to go on and get hold of the Rock Island car for my convenience. I could if I had wanted to, have gone to the coal tres tle and gotten my Rock Island car before I got the Southern car but we would have been running by work. We always take the work as we come to it. The first thing I come to I pick it up, and the Southern car was attached to the back of the engine during the switching movement of the Rock Island car. All this time we were switching the Rock Island car it was extra baggage or whatever you might call it. We think nothing about a movement like that with a switch engine. As I told you awhile ago, it saved me a switch there. If I had picked this car up and carried it there, I would have had to back into the coal chute, and it saved me an extra movement there. That was not the only reason we backed in there and picked it up at that time. I did not know where the other cars were.

"As I told you, we get a list of cars at Poe Mill, and they don't tell us where to find those cars at. We have got to look for them, and it was dark and I had to hunt them and locate the cars and where they ...