Southern Ry. Co. v. Turner

• Decision Date: 22 April 1953
• Docket Number: No. 2,No. 34598,34598,2
• Citation: 88 Ga.App. 49,76 S.E.2d 96
• Parties: SOUTHERN RY. CO. v. TURNER
• Court: Georgia Court of Appeals

Page 96

76 S.E.2d 96

88 Ga.App. 49

SOUTHERN RY. CO. v. TURNER.

No. 34598.

Court of Appeals of Georgia, Division No. 2.

April 22, 1953.

Syllabus by the Court.

The Congressional amendment of 1939 to the Federal Employers' Liability Act, 45 U.S.C.A. § 54, 'obliterated from that law every vestige of the doctrine of assumption of risk,' and further rejected the argument 'that the assumption of risk might still be relied upon to prove that the respondent had no duty to protect [plaintiff] from accustomed danger.' Accordingly, where, as here, the petition alleges negligence on the part of the defendant in failing to provide the plaintiff with a safe place to work, in that the plaintiff, a brakeman, in alighting from a moving train in the usual and ordinary performance of his duties, stepped on a rotten crosstie which caused him to fall, resulting in injury, a jury question is presented.

J. A. Turner filed suit in the City Court of Brunswick against Southern Railway Company for injuries received by him while engaged in the employment of the defendant railroad as a brakeman. The petition alleged that, pursuant to his duties, plaintiff was assisting in a movement on the main line in which certain cars were being removed from the train and others attached; that, to accomplish the work, he was located upon a step on the right front of an engine traveling at about 5 miles per hour toward a switch; that, as was usual and customary, he alighted from the engine shortly before it arrived at the clearance post of the switch in order to be in position to signal the engineer at the proper moment; that it is usual, customary, and perfectly safe for brakemen to alight from engines moving at this speed, and, upon so doing, it is necessary to take three or four forward steps to overcome their body momentum; that he alighted with his left foot on the ground in the space between the main track and a sidetrack; that his next step was forward and to the right to avoid entanglement with cars in motion, and to reach a better vantage point for signaling, and his right foot landed upon the end of a cross-tie, which was rotten and uneven and which gave was beneath his foot, causing him to fall and sustain certain particularly described injuries; that the cross-tie had been in a rotten and uneven condition for several months, a fact of which plaintiff had no knowledge or warning, and that the defendant was negligent, (a) in failing to provide plaintiff with a reasonably safe place to work, (b) in failing to warn him of the condition of the cross-tie, and (c) in failing to remove said cross-tie from its yards before plaintiff was required to work thereabouts, which acts of negligence directly and proximately caused the injuries complained of.

The defendant filed general and special demurrers, which were overruled, and the exception is to this judgment.

Reese, Bennet & Gilbert, Brunswick, for plaintiff in error.

Hewlett, Dennis, Bowden & Barton, Atlanta, Nightingale & Liles, Brunswick, for defendant in error.

TOWNSEND, Judge.

The special demurrers are treated as abandoned, as counsel for the defendant in their brief state that the single question is whether the petition sets forth a cause of action. The Federal Employers' Liability Act, 45 U.S.C.A. § 51, provides in part that every common carrier shall be liable to any person suffering injury while employed by such carrier resulting in whole or in part from the negligence of its employees, or by reason of any defect or insufficiency, due to its negligence, in its machinery, track, roadbed, works or other equipment. The question may therefore be further narrowed to consideration of whether a rotten cross-tie, by means of which the plaintiff was injured, may as a matter of law be held not a defect or insufficiency in the defendant's track or roadbed due to its negligence, for, if not, the allegations of the petition are sufficient to charge that the defendant failed to furnish its employee with a safe place to work. Counsel for the defendant rely primarily upon the case of Nelson v. Southern Railway Co., 1918, 246 U.S. 253, 38 S.Ct. 233, 62 L.Ed. 699. The Supreme Court in that case held that a civil engineer walking along a main track and injured by a rotton cross-tie in about the same manner the plaintiff here alleges injury stated no cause of action. The court, in a brief opinion, pointed out that 'Plaintiff knew that there were always some ties on the line which were partly decayed, and also that the ballast was occasionally below the top of the ties', and concluded as follows: 'It is clear that the defendant did not fail in any duty which it owed to the plaintiff.' This language within the opinion, as well as the discussion of the Nelson case and the distinctions drawn in Chicago Great...