Southern Ry. Co. v. Smalley
| Decision Date | 05 September 1967 |
| Docket Number | No. 42849,42849 |
| Citation | 116 Ga.App. 356,157 S.E.2d 530 |
| Parties | SOUTHERN RAILWAY COMPANY v. E. H. SMALLEY. |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. The court did not err in overruling the railroad's motion for a judgment n.o.v. or its motion for a new trial on the general grounds.
2. The court erred in overruling the railroad's motion for a new trial for the reason stated in division 3 of the opinion.
Scott Edwards, Jr., Marietta, Matthews, Maddox, Walton & Smith, John W. Maddox, Rome, for appellant.
T. J. Lewis, Atlanta, Jean E. Johnson, Sr., Marietta, for appellee.
This is the second appearance of this case in this court. The first decision is reported in Southern Railway Company v. Smalley, 112 Ga.App. 471, 145 S.E.2d 708. Count 1 of the petition is all that is involved in this appeal. The fourth amendment to Count 1 was made since the first trial of the case. That amendment eliminated all questions of the plaintiff's right to recover except the right under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. To simplify the trial of the complex issue in the case the court submitted to the jury the sole question whether under the facts the Federal Employers' Liability Act applied. It found that under the disputed facts (the findings on which determined whether the Act applied-since the jury could not render a verdict on a question solely of law) the Act applied. From the judgment on the verdict finding that the Act applied, the railroad appealed and enumerated as error the overruling of its motion for a judgment n.o.v. and its motion for a new trial on the grounds enumerated as error.
1. We are of the opinion that the law of this case was decided in the prior appeal. While there was some additional evidence on the last trial it was not of sufficient import to change the principle covered by the rulings in the first case, that when a railroad provides shelter to an employee and at the time of an injury he is using the accommodation to rest and recuperate, he must be regarded as in 'the employ' of the railroad within the Federal Employers' Liability Act. Under the conflicting evidence in the second trial, the jury was authorized to find that the employee was using the caboose for rest and recuperation in spite of the following undisputed facts: that the employee was technically off duty; that his next assigned duty was at 7 a.m. the following day; that he was no more subject to being called for emergency duty in the meantime than if he were sleeping at home; that he was not required, in the meantime, to remain conveniently accessible for emergency call, but could go anywhere and do anything he pleased without notifying his employer where he could be reached, and that there was no penalty upon him if he was not reached for an emergency call; that he was on the caboose voluntarily and as a matter of personal choice and not by a requirement by his employer; that his purpose in being on the caboose was the mission of playing poker and relaxing; that an employee would be wrongfully on the caboose if he was drinking intoxicants while thereon; that he was not engaged in doing any actual work for his employer at the time he was injured and was not being paid for the time involved. In addition to the cases cited in the first decision, we call attention to the case of McCann v. Smith, 2 Cir., 370 F.2d 323 (rendered December 23, 1966) which decided that where a locomotive engineer went to a bunk room provided by the railroad to spend the layover time between his runs and was suddenly attacked by another occupant of the bunk room and seriously injured, it was not error for the trial court to refuse to direct a verdict for the railroad.
The court properly overruled the railroad's motion for a judgment n.o.v. and the general grounds of its motion...
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...such issue, in this particular case, the plaintiff.' The language of this request was taken substantially from Southern Ry. Co. v. Smalley, 116 Ga.App. 356, 358(3), 157 S.E.2d 530, but with the addition of the words 'in this particular case, the plaintiff.' In view of the fact that defendan......
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...having the burden of proof upon such issue. The substance of this charge has been approved in such cases as Southern R. Co. v. Smalley, 116 Ga.App. 356, 358 (3), 157 S.E.2d 530; Richards v. Harpe, 42 Ga.App. 123, 126 (12), 155 S.E. 85; Ga. Power Co. v. Smith, 94 Ga.App. 166, 169 (5), 94 S.E......
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