Seaboard Coast Line R. Co. v. Daugherty

• Decision Date: 30 September 1968
• Docket Number: No. 2,No. 43933,43933,2
• Parties: SEABOARD COAST LINE RAILROAD COMPANY v. Anna L. DAUGHERTY
• Court: Georgia Court of Appeals

Page 269

164 S.E.2d 269

118 Ga.App. 518

SEABOARD COAST LINE RAILROAD COMPANY v. Anna L. DAUGHERTY.

No. 43933.

Court of Appeals of Georgia, Division No. 2.

Sept. 30, 1968.

Rehearing Denied Oct. 15, 1968.

Certiorari Denied Feb. 20, 1969.

Syllabus by the Court

The Federal Employers' Liability Act requires that in actions for injury or death of railroad employees the damages shall be diminished in the proportion that the employee's negligence bears to the total negligence of both parties causing the injury. Under this Act the common-law rule of 'last clear chance' is obsolete. Negligence of the employer in failing to avoid injury to a negligent plaintiff in a perilous position may be an element in arriving at the total negligence of both parties, from which the plaintiff's portion of negligence is to be subtracted to arrive at the recoverable damages.

This was an action for the death of a railroad employee under the Federal Employers' Liability Act which resulted in a verdict and judgment for the plaintiff. The defendant on this appeal enumerates as error the overruling of its motion for directed verdict and judgment notwithstanding the verdict, instructions by the court to the jury, and failure by the court to charge certain requests of the defendant.

Larry E. Pedrick, Waycross, Hubert H. Howard, Jesup, for appellant.

Joseph B. Bergen, Savannah, for appellee.

HALL, Judge.

1. The defendant's first enumeration of error is that the trial court erred in overruling its motions for directed verdict and for judgment notwithstanding the verdict. In an FELA case, whether the evidence is insufficient to present to the jury issues of the defendant's liability, and therefore demands a verdict for the defendant, is a federal question upon which decisions of the United States Supreme Court must be followed by a State court. St. Louis Southwestern Ry. Co. v. Simpson, 286 U.S. 346, 52 S.Ct. 520, 76 L.Ed. 1152; Southern Ry. Co. v. Gray, 241 U.S. 333, 36 S.Ct. 558, 60 L.Ed. 1030. More than 'a scintilla' of evidence is required to make a jury issue under the federal rule. Brady v. Southern Ry. Co., 320 U.S. 476, 64 S.Ct. 232, 88 L.Ed. 239; Jesionowski v. Boston & Maine R., 329 U.S. 452, 457, 67 S.Ct. 401, 91 L.Ed. 416; Atchison, Topeka & Santa Fe Ry. Co. v. Toops, 281 U.S. 351, 50 S.Ct. 281, 74 L.Ed. 896. In the present case the evidence of negligence on the part of the defendant was substantial and was sufficient to sustain a verdict for the plaintiff under the federal rule, and did not authorize the direction of a verdict for the defendant. Western & Atlantic R. v. Hughes, 278 U.S. 496, 498, 49 S.Ct. 231, 73 L.Ed. 473.

2. The trial court did not err in overruling the defendant's exception to the charge, 'Under the Federal Employers' Liability Act recovery for injuries is not necessarily barred because an injured employee may have participated in the act which caused the injury or death.' This charge was given in context with other charges that the plaintiff's husband had the duty to exercise ordinary care for his own safety and his failure to do so would constitute negligence; that if the plaintiff's husband was negligent this would not defeat the plaintiff's recovery but would diminish the damages recoverable proportionately by the amount of the deceased's negligence as compared to the total negligence of both parties; that if death was caused solely by the deceased's own negligence the plaintiff would not be entitled to recover, and that the plaintiff had the burden to show that death was caused in whole or in part by specifically alleged negligence of the railroad. The charge excepted to was perhaps repetitions but was not error and was consistent with the opinion on the former appeal in this case, Atlantic Coast Line R. Co. v. Daugherty, 116 Ga.App. 438, 446, 157 S.E.2d 880.

3. The trial court did not err in overruling the defendant's exception to the charge that 'where an employee with the knowledge of the railroad and without disapproval of the railroad used a certain passageway to cross tracks at certain points, other employees of the railroad in charge of a train and aware of such custom are bound to anticipate that persons may be on the track at the certain point and take precautions accordingly.' The ground of the exception was that there was no evidence of a customary passageway for employees crossing tracks of which the trainmen were aware.

The charge could have been more precisely adjusted to the evidence that a crew operating a train on the switch track at the location was required to obtain permission to enter the track from the dispatcher by using a telephone across the main tracks from the switch track, as had been done shortly before the deceased was killed. Whether or not literally this should be called a customary passageway to cross tracks, it does not appear that the charge would have been harmful in view of all the evidence.

4. On the issue whether the trial court erroneously instructed the jury on the negligence doctrine of 'last clear chance' (Enumerations of error 4, 5, 6 and 7), the Federal Employers' Liability Act, supra, as interpreted by the Supreme Court of the United States is the sole authority. St. Louis Southwestern Ry. Co. v. Simpson, supra; Pitcairn v. Perry, 122 F.2d 881, 883 (8th Cir. 1941); Nashville, C. & St. L. Ry. Co. v. York, 127 F.2d 606, 628 (6th Cir. 1942); Brennan v. Baltimore & O. Ry. Co., 115 F.2d 555 (2d Cir. 1940). The Act provides that '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 of the amount of negligence attributable to such employee.' 35 Stat. 66, 45 U.S.C.A. § 53. Unlike the Georgia 'apportionment of damages' law, this statute permits a negligent plaintiff to recover a portion of his damages when the defendant's negligence contributes less than the plaintiff's to the injury. The damages are reduced in the proportion that the plaintiff's negligence bears to the total negligence of both parties. Norfolk, etc., R. Co. v. Earnest, 229 U.S. 114, 122, 33 S.Ct. 654, 57 L.Ed. 1096.

The Georgia law provides for apportionment of damages in some cases, but provides that a negligent plaintiff is completely barred from recovery from a negligent defendant if the plaintiff was in a position of danger because of his own failure to exercise ordinary care for his own safety; if he failed to exercise ordinary care to avoid the consequences of the defendant's negligence after it was known or reasonably apprehensible to him (the last clear chance applied to the plaintiff); or if his own contributory negligence was equal to or greater than that of the defendant. Code § 105-603; Southern Ry. Co. v. Daniell, 102 Ga.App. 414, 417, 116 S.E.2d 529; Underwood v. Atlanta & West Point R. Co., 105 Ga.App. 340, 358, 124 S.E.2d 758; McDonald v. Vaughan, 115 Ga.App. 544, 154 S.E.2d 871. With this complex statutory and common-law so-called comparative negligence rule the Georgia courts have unfortunately displayed a lack of consistency in applying the last clear chance rule. Grayson v. Yarbrough, 103 Ga.App. 243, 246, 119 S.E.2d 41; Hirsch v. Chapman, 109 Ga.App. 444, 452 et seq., 136 S.E.2d 409. In any event, the Georgia law is irrelevant to an FELA case, in which the law requires apportionment or diminution of damages according to the plaintiff's negligence as compared with the combined negligence of both parties.

The United States Supreme Court has decided no FELA case to our knowledge when it was necessary to decide whether the defendant would be liable for the plaintiff's total damages by application of the last clear chance rule to the evidence. Therefore, there is no decision controlling the State courts on this issue. In St. Louis Southwestern Ry. Co. v. Simpson, 286 U.S. 346, 52 S.Ct. 520, 76 L.Ed. 1152 (1932), the plaintiff admitted that the deceased employee was negligent and relied for recovery on the railroad's last clear chance. The evidence as to the railroad's discovery of the deceased's peril and opportunity to counteract it was held insufficient to 'wake into life the doctrine of last clear chance' and relieve the deceased from the sole responsibility for his death. Some federal circuit courts have also rejected contention by the plaintiff that the evidence authorized an application of the last clear chance doctrine to support a verdict against the railroad. Deere v. Southern Pac. Co., 123 F.2d 438 (9th Cir. 1941); Atlantic Coast Line R. Co. v. Anderson, 267 F.2d 329 (5th Cir. 1959). We know of one decision of a circuit court, affirming a verdict for the plaintiff, holding that the evidence presented...