Southern Ry. Co. v. Jones

• Decision Date: 18 September 1958
• Docket Number: No. 1,No. 37273,37273,1
• Citation: 98 Ga.App. 313,106 S.E.2d 298
• Parties: SOUTHERN RAILWAY COMPANY v. A. L. JONES
• Court: Georgia Court of Appeals

Page 298

106 S.E.2d 298

98 Ga.App. 313

SOUTHERN RAILWAY COMPANY v. A. L. JONES.

No. 37273.

Court of Appeals of Georgia, Division No. 1.

Sept. 18, 1958.

Rehearing Denied Oct. 14, 1958.

Syllabus by the Court.

The evidence authorized the verdict for the plaintiff, and no error is shown by the amended motion for new trial which requires the grant of the defendant's motion for a new trial.

Alfred L. Jones sued Southern Railway Company to recover, according to the allegations of his petition, for injuries sustained when he was thrown from the braking platform of a boxcar to the ground when the handbrake of such boxcar failed to work properly. On the trial the jury returned a verdict for the plaintiff, which was made the judgment of the trial court. The defendant's motion for new trial as amended was denied, and the defendant now excepts to this judgment.

Greene, Neely, Buckley & DeRieux, Edgar A. Neely, Jr., Atlanta, for plaintiff in error.

Lewis & Lewis, T. J. Lewis, T. J. Lewis, Jr., Atlanta, for defendant in error.

NICHOLS, Judge.

1. The plaintiff, at the time of the injury sued for, was a switchman employed by the defendant railroad. The evidence authorized the jury to find that the plaintiff had ridden a boxcar into a side track and applied the handbrake sufficiently to stop the boxcar from rolling, that after signaling a fellow employee with his lantern, but before he had completed 'tieing down' the handbrake, the handbrake, because of a defect, spun loose causing the plaintiff to be thrown to the ground where he suffered certain fractures to his foot and other injuries, and as a result of such injuries he, according to medical testimony, cannot resume his previous employment or undertake other employment where he would be required to walk over rough terrain inasmuch as certain bones in the foot that was fractured had to be fused together so that no movement of the joints could take place. A verdict for the plaintiff was authorized by the evidence.

2. The special grounds of the defendant's motion for new trial numbered 4 and 5 assign error on the failure of the trial court to charge, both with and without a timely written request, that, if the jury should find that the sole proximate cause of the plaintiff's injuries, if any, was his own negligence, a verdict for the defendant should be returned.

The defendant, as a further plea and answer, alleged that the sole proximate cause of the plaintiff's injuries was his own negligence, but there was no evidence adduced on the trial to support this plea. All of the evidence adduced by the defendant sought to impeach the plaintiff and the plaintiff's witnesses, but none was adduced to show that the plaintiff was negligent in any manner. Had the jury believed that the plaintiff's evidence was impeached, then the jury should have found that the plaintiff failed to carry the burden of proof and was not entitled to recover, and the jury was so instructed, but a finding that the plaintiff's negligence was the sole proximate cause of his injury could only have been found after a finding that he had not carried the burden of proof had been arrived at, which would in and of itself prevented the plaintiff from a recovery. It was not error to fail to charge the jury the law on a pleading which was not supported by the evidence. Hare v. Southern Ry. Co., 61 Ga.App. 159, 161, 6 S.E.2d 65 and citations; Limbert v. Bishop, 96 Ga.App. 652, 653, 101 S.E.2d 148.

3. Special grounds 6 and 7 assign error on the failure to charge, and the refusal to charge with timely written request, that the plaintiff was required to exercise ordinary care for his own safety and that a failure to exercise such care amounted to negligence.

As stated in the foregoing division of the opinion there was no evidence of any negligence on the part of the plaintiff to support the allegations of the defendant's answer, that the negligence of the plaintiff was the sole proximate cause of his alleged injuries. However, assuming, but not deciding, that there was some evidence of a failure to exercise ordinary care for his own safety by the plaintiff, a charge that such action would amount to negligence without evidence to support a finding that such negligence could have been the sole proximate cause of his alleged injuries would not have been authorized. As said by the Supreme Court in the case of Bass v. Seaboard Air Line R. Co., 205 Ga. 458, 471, 53 S.E.2d 895, 904: 'Here the alleged negligence of the railroad is its violation of the law enacted for the safety of the employee in respect to efficient hand brakes, and in these circumstances the proviso in § 53 [Federal Employers' Liability Act (45 U.S.C.A.)], comes into operation. That proviso, as hereinabove quoted, eliminates any negligence of the employee where the violation by the common carrier of a statute enacted for the safety of the employee...