Seaboard Coast Line R. Co. v. Thomas

• Decision Date: 24 February 1972
• Docket Number: No. 46735,3,2,Nos. 1,46735,s. 1
• Citation: 125 Ga.App. 716,188 S.E.2d 891
• Parties: SEABOARD COAST LINE RAILROAD COMPANY v. G. D. THOMAS
• Court: Georgia Court of Appeals

Page 891

188 S.E.2d 891

125 Ga.App. 716

SEABOARD COAST LINE RAILROAD COMPANY v. G. D. THOMAS.

No. 46735.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Feb. 24, 1972.

Rehearing Denied March 17, 1972.

Syllabus by the Court

1. In an action brought under the Federal Employers' Liability Act, the verdict should be proportionate to the defendant's negligence if both parties are guilty of negligence. The defense of assumption of risk does not obtain. It follows that while it would be proper to charge generally that negligence consists in a failure to exercise ordinary care, the plaintiff's lack of ordinary care for his own safety, unless unmixed with negligence of the defendant, will reduce but not bar recovery. It is therefore often improper for the trial court to charge without qualification that a duty devolves upon the plaintiff to exercise ordinary care for his own safety.

2. The appellant cannot complain that the court gave an instruction requested by it; that it failed to give another instruction, which was imperfect, to qualify the first, or that by giving the request without qualification it did not fully define on the subject.

3. It was not error to exclude documents furnished by the employee to the employer prior to employment which showed that the employee at that time had a 10% service connected disability.

4. In arriving at its verdict it is no concern of the jury what attorney fees, income tax or other expenses might have to be paid out of the recovery, nor the extent to which the employee's gross earnings prior to injury were subject to income tax and other withholdings.

The plaintiff, a railroad employee, suffered severe injuries necessitating hospitalization and spinal fusion when he slipped and fell while entering a boxcar with some tools for the purpose of making repairs. The floor of the car was more or less covered with a white residue from some chemical which had spilled out from a previous load and had become slick due to rain coming in from the open doors the previous night. The action was brought under the provisions of the Federal Employers' Liability Act and a verdict for the plaintiff resulted, from which the defendant railroad appeals.

Larry E. Pedrick, Wilson G. Pedrick, Waycross, for appellant.

Benjamin Smith, Jr., Leon A. Wilson, II, J. Floyd Thomas, S. Forster Memory, Jr., Waycross, for appellee.

DEEN, Judge.

1. The defendant complains that the court refused its requested charge: 'There rested upon plaintiff a duty to exercise ordinary care for his own safety, being just such care as an ordinarily prudent person would exercise under the same or similar circumstances. Failure to exercise ordinary care for his own safety would constitute negligence.' This is of course a standard instruction in an ordinary negligence action. The court charged that common carriers are liable to their employees for injury resulting in whole or in part from the negligence of the defendant; that contributory negligence of the employee will not bar recovery but will proportionately diminish the damages; that the employee does not assume the risk of his employment where injury results in whole or in part from the negligence of the defendant; that the defendant was under a duty to exercise ordinary care, being that degree of care which a reasonable and prudent man would exercise under the same or similar circumstances; that failure to exercise such degree of care would be negligence; that if the plaintiff's injury was caused solely by his own negligence he could not recover; that negligence is failure to exercise the degree of care required by law; that absence of ordinary diligence is termed ordinary negligence; that the burden is upon the defendant to provide a reasonably safe place for employees to work, and that where causal negligence is attributable partly to the employer and partly to the employee, the employee shall recover only a proportional amount bearing the same relation to the full amount as the negligence attributable to the carrier bears to the entire negligence attributable to both.

It is now well settled that, simply because a request to charge (Code Ann. § 70-207) is apt, correct and pertinent, it is not necessarily error to fail to charge it, but the test is whether the court substantially covered the principles embodied therein (Jackson v. State, 225 Ga. 553, 561, 170 S.E.2d 281; Young v. State, 226 Ga. 553, 556, 176 S.E.2d 52) or whether it was 'sufficiently or substantially covered by the general charge' (American Home Assur. Co. v. Stephens, 121 Ga.App. 306, 309, 174 S.E.2d 186, 189). This then, will be the criterion for decision here. In view of the special negligence requirements for recovery in the Federal Employers' Liability Act, this will mean looking to the charge as a whole not only to determine whether the requested material was given, which it obviously was not, but whether the rules for translating negligence findings into monetary amounts would have been clarified or otherwise by giving the request.

In Atlantic Coast Line R. Co. v. Dixon, 5 Cir., 189 F.2d 525, 527, it was held that 'it is of course the duty of an employee to exercise reasonable and ordinary care for his own safety.' In Atlantic Coast Line R. Co. v. McDonald, 103 Ga.App. 328, 331, 119 S.E.2d 356, 359, it was held that 'it would not have been proper for the trial judge to have charged without qualification that a duty devolved upon the plaintiff of exercising ordinary care.' In Atlantic Coast Line R. Co. v. Burkett, 5 Cir., 192 F.2d 941, 944, the court affirmed the action of the trial judge in refusing a request to the effect that both the plaintiff employee and the defendant employer are required to exercise ordinary care in view of all the circumstances, and that negligence on the part of either would be the failure to exercise reasonable or ordinary care. We will not enter into a precise analysis of the three cases because none of them is factually identical so as to be controlling. In each case the danger is, on the one hand, that the court by saying too much will open the door to the jury to reinstate the obliterated assumption of risk doctrine under another name; on the other hand, by not saying enough, the court may communicate the notion that the defendant railroad is an insurer of the safety of the employee, which it is not. In Georgia law (see cases annotated under Code § 105-603) the words 'ordinary care for his own safety' have, as to the plaintiff, become almost words of art, and they cannot be applied to a F.E.L.A. case without raising the necessity for a fuller discussion of assumption of risk, its modification in these circumstances, and the further modification of the contributory negligence doctrine. We do not say that it would have been error in this case to have instructed the jury exactly as requested. Neither can we say it was harmful to omit the instruction where the court clearly and simply covered the central issue-that the jury must determine whether causal negligence existed on the part of either litigant, and, if both, that the plaintiff is entitled to recover that proportion which the defendant's negligence bears to the whole. Where assumption of risk obtains the whole burden of exercising care for the safety of the employee is cast upon him. Where, as here, the doctrine is not available as a defense, the jury may find the employee's failure to avoid the risk is 99% his own fault and still award him 1% damages, although a jury would usually not think of this as being 'just such care as an ordinarily prudent person would exercise.' Therefore, failure to give the request did...