Powell v. Waters

• Decision Date: 27 February 1937
• Docket Number: No. 25951,25951
• Citation: 190 S.E. 615,55 Ga.App. 307
• Parties: POWELL et al. v. WATERS.
• Court: Georgia Court of Appeals

55 Ga.App. 307

190 S.E. 615

POWELL et al.

v.WATERS.

No. 25951

Court of Appeals of Georgia,

Division No. 2.

Feb. 27, 1937.

.

Syllabus by the Court.

1. In an action against a railroad company for injury to one of its employees based on the defendant's violation of a federal statute, in order to render the company liable there must necessarily be, as in other cases, a causal connection between such violation and the injury, (a) "The most generally accepted theory of causation is that of natural and probable consequences (Mayor, etc., of Macon v. Dykes, 103 Ga. 847, 848, 31 S.E. 443); and in order to hold the defendant liable the petition must show either that the act complained of was the sole occasion of the injury, or that it put in operation other causal forces, such as were the direct, natural, and probable consequences of the original act, or that the intervening agency could have reasonably been anticipated or foreseen by the original wrongdoer." Rome Railway, etc, Co. v. Jones, 33 Ga.App. 617, 618, 127 S.E. 786.

(b) An employee of a railroad company cannot recover under the Safety-Appliance Act, 45 U.S.C.A. § 1 et seq, if the failure to comply with its requirements is not the proximate cause of the accident which results in his injury, but merely creates an incidental condition or situation, in which the accident, otherwise caused, results in such injury.

Error from City Court of Springfield; Paul D. Shearouse, Judge.

Suit by M. J. Waters, administratrix of the estate of A. R. Waters, deceased, against L. R. Powell, Jr., receiver, and others. To review a judgment overruling general and special demurrers to the petition, defendants bring error.

Reversed.

The plaintiff brought suit for damages against the defendants, alleging that her intestate, A. R. Waters, on May 23, 1935, was employed by the defendants in the capacity of engineer of a passenger train running from Columbia, S. C. to Savannah, Ga.; that on a trip between such points, at Stillwell, Ga, about 2:35 p. m, a pump, which was a part of the air brake system, became stuck because of its faulty condition and failed to function thus rendering the entire system of air brakes useless; that by reason of the failure of the air pump to function the air pressure at the engine could not be maintained at the proper level, and the brakes could not be controlled from the engine, and that the train was halted at Still-well, Ga, when the brakes became automatically applied and could not be released by the controls in the engine unless the defect in the pump could be remedied so that it would run again and build up the air pressure at the engine; that the railroad officials in Savannah were notified of the situation and were asked for instructions, and that no instructions were given the train crew, and that another engine was sent from Savannah to pull the said train into Savannah; that the decedent, in line with his duty as engineer to do all that he could to bring the train into Savannah, attempted to start the air pump to functioning by going out on the runway or platform leading from the cab of the engine along the boiler thereof, on the side on which the air pump was installed, and pounding on the drum inclosing the air pump with a hammer, that being the usual method of remedying the condition of the said pump; that the pump itself, due to the fact that it has 200 pounds per square inch of live steam on it, is extremely hot, and the heat from the engine and the boiler is so great that one can hardly stand on the platform; that this heat, together with the heavy and the unusual exertion caused by pounding on the drum, overheated, overexerted, and strained the decedent so that after working on said pump for approximately an hour he became exhausted and complained of feeling badly; that after it became apparent that the condition of the air pump could not be remedied, and that orders would not be received from the officials in Savannah and help sent to them, the deceased, though overheated and exhausted, assisted in "bleeding" the train, that is, in releasing the air in the train line and in the reserve air tank under each car in the train, in order that the brakes would be released and the train could be moved, and the deceased then ran the train into Savannah without brakes, as he had a right to do, as Savannah was the nearest place at which the pump could be fixed; that the train, being operated without air brakes, had to be operated at an extremely low rate of speed and with unusual care and attention, all of which still further overexerted and exhausted the deceased; that the condition of the deceased, as a result of the overexertion and overstraining at Stillwell, did not be-come critical until after the train had arrived in Savannah at 5 p. m.; that on his arrival in Savannah his condition was so critical that the defendants' physician was summoned and attended him at the Union Station; that he was then moved to his home where he was also attended by the physician but died at 7 p. m. After stating the deceased's age, earning capacity, etc, as a basis for the amount of damages, the petition alleged that the defendants were negligent: (a) In not furnishing the train with a good and sufficient air brake system; (b) in failing to send another engine from Savannah to pull the train in; (c) in failing through its officials to issue instructions to the train crew and to the deceased as to what should be done under the circumstances; (d) in failing to provide the deceased a safe place in which to work; all of which negligence the plaintiff alleged by amendment to be the proximate cause of the death of the decedent. The defendants filed general and special demurrers which the court overruled, and the exception is to that judgment.

Anderson, Cann & Dunn and Gazan, Walsh & Bernstein, all of Savannah, for plaintiffs in error.

John C. Wylly and Kennedy & McWhorter, all of Savannah, for defendant in error.

SUTTON, Judge.

This case arises under the Federal Employers' Liability Act (45 U.S.C.A. § 51 et seq.) and is predicated on a violation of the Safety Appliance Acts (45 U.S.C.A. § 1 et seq.), in that the air pump on the engine, which is a part of the air brake system and furnishes compressed air for the operation of the defendants' train, became stuck and failed to function, on account of its faulty condition, rendering the entire system of air brakes useless, which, the plaintiff contends, caused the injury to and the death of the decedent, as alleged in her petition.

The Federal Safety Appliance Acts, as contained in U.S.C.A., provide in part: Title 45, section 1. "It shall be unlawful for any common carrier engaged in interstate commerce by railroad to use on its line any locomotive engine in moving interstate traffic not equipped with a power driving-wheel brake and appliances for operating the train-brake system, or to run any train in such traffic that has not a sufficient number of cars in it so equipped with power or train brakes that the engineer on the locomotive drawing such train can control its speed without requiring brakemen to use the common hand brake for that purpose." Title 45, section 7. "Any employee of any common carrier engaged in interstate commerce by railroad who may be injured by any locomotive, car, or train in use contrary to the provision of this chapter shall not be deemed thereby to have assumed the risk thereby occasioned, although continuing in the employment of such carrier after the unlawful use of such locomotive, car, or train had been brought to his knowledge." Section 13 of the same title provides that "where any car shall have been properly equipped, as provided in this chapter, and such equipment shall have become defective or insecure while such car was being used by such carrier upon its line of railroad, such car may be hauled from the place where such equipment was first discovered to be defective or insecure to the nearest available point where such car can be repaired, without liability for the penalties imposed by this section or section 6 of this chapter, if such movement is necessary to make such repairs and such repairs can not be made except at such repair point; and such movement or hauling of such car shall be at the sole risk of the carrier, and nothing in this section shall be construed to relieve such carrier from liability in any remedial action for the death or injury of any railroad employee caused to such employee by reason of or in connection with the movement or hauling of such car with equipment which is defective or insecure or which is not maintained in accordance with the requirements of this chapter." Federal Employers' Liability Act, § 1, 45 U.S.C.A. Section 51 provides: "Every common carrier by railroad while engaged in [interstate commerce] * * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative, * * * for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment." Section 53 provides: "In all actions hereafterbrought against any such common carrier by railroad under or by virtue of any of the provisions of this chapter to recover damages for personal injuries to an employee, or where such injuries have resulted in his death, the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee: Provided, That no such employee who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation by such common...