Southern Ry. Co v. Heaton, 27773.

Citation6 S.E.2d 339
Decision Date29 November 1939
Docket NumberNo. 27773.,27773.
PartiesSOUTHERN RY. CO. v. HEATON.
CourtUnited States Court of Appeals (Georgia)

Rehearing Denied Dec. 16, 1939.

[COPYRIGHT MATERIAL OMITTED.]

Syllabus by the Court.

1. A workman engaged on the same job with others, although he may have the direction of it, is not a vice-principal of the master, but is a mere fellow servant.

2. In a suit brought under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., where it is alleged that the defendant railroad company furnished the employee a defective and unsafe appliance with which to do the work assigned, in violation of the act, and that this contributed to his injury, the employee will not be held to have assumed the risk of his employment.

3. Both under the law of this State, and under the Federal Employers' Liability Act, an interstate railroad company is liable foran injury caused to one of its servants as a result of the negligence of a fellow servant while engaged in the performance of the duties of the employment.

4. Where each of two counts to a petition sets forth a cause of action based on the same transaction, but the cause of action in the two counts is not the same, and in the determination of liability different proof would be required and different rules of law would be applicable, one count setting out a cause of action against a railroad company for failure to furnish a servant with a safe appliance with which to do the work, and the other count setting out a cause of action based upon the negligence of a fellow servant, the causes of action are not the same, and the petition is not bad for duplicity.

5. The second count of the petition in this case was predicated solely on the negligence of the fellow servants of the injured employee, and under the pleadings and the evidence it was a question for the jury whether the injured employee was hurt as a direct and proximate result of the failure of at least one of his fellow servants properly to carry out instructions as to the manner in which the particular work in which they were engaged should be performed.

6. In a suit by an injured railroad employee against his employer, where it is alleged that he was injured as a direct result of the negligence of two of his fellow employees, the employee would be entitled to prevail, if there was evidence tending to show that his injuries were caused by the negligence of both or either of his fellow employees.

7. On the trial of an action by an employee against his employer, an interstate carrier, for injury to the employee by alleged negligence of his coemployee while engaged in interstate transportation, a charge by the court to the jury that the Federal Employers' Liability Act was applicable was not erroneous, even though the employee did not specifically bring his case under that statute, but under "such statutes and laws as are applicable thereto."

8. The test in determining whether a railroad employee at the time of injury was employed in interstate commerce, so as to be able to recover under the Federal Employers' Liability Act, is whether the employee was engaged in interstate transportation, or in work so closely related to it as to be practically a part of it.

9. One engaged in employment necessary to the maintenance of any instrumentality essential to the successful operation of a road by a carrier engaged in interstate commerce is engaged in interstate transportation under the Federal Employers' Liability Act.

10. A crossing sign post erected by an interstate railroad company along its right of way at a public-road crossing, to warn travelers on the highway of the presence of the railroad crossing, is an instrumentality used in facilitating and safeguarding interstate transportation. A person engaged in the maintenance and repair of such sign post is engaged in interstate transportation, or in work so closely related thereto as to be practically a part of it.

11. The charge of the court as to the employee's claim for damages on account of lost time resulting from his injuries was authorized by the evidence and was not error.

12. It is not cause for a new trial that the judge gave in charge to the jury the substance of 45 U.S.C.A. § 51 (c. 149, § 1, 35 Stat. 65), a part of which was applicable to the case under consideration and a part was not, it not appearing that the inapplicable part was calculated to mislead the jury, erroneously affected their verdict, or was prejudicial to the rights of the complaining party.

13. Under the Federal Employers' Liability Act, "Contributory negligence [of the employee] shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee." In such case brought by an injured employee under the Federal Employers' Liability Act, it was not error for the court to charge the jury that if they found that the employee's negligence contributed to his injury, his "damages would be diminished by the jury in proportion to the amount of negligence attributable to the plaintiff, " and that "such negligence would reduce the amount in proportion to the negligence attributable to the plaintiff."

14. It is not a good exception to a portion of the judge's charge which states a correct principle of law applicable to the case, that some other correct instruction was not given.

15. The doctrine of assumption of the risk has no application to risks arising solely out of unexpected negligent acts of fellow servants, nor is an employee under a duty to anticipate such unexpected negligent acts.

16. It is not error for the court to refuse requests to give in charge to the jury instructions which embody principles of law not applicable to the facts of the case, or which are sufficiently embraced within the charge as given. The court did not err in refusing the requests embodied in grounds 7, 8, 9, and 10 of the motion for new trial.

17. The verdict of $10,000, under the facts relative to the permanent nature and extent of the plaintiff's injuries, was not so excessive as to show bias or prejudice on the part of the jury.

18. No case arising under the Federal Employers' Liability Act, "and brought in any State court of competent jurisdiction, should be removed to any court of the United States."

Error from Superior Court, Hall County; Robt. McMillan, Judge.

Suit by Flay Heaton against the Southern Railway Company, under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., for injuries allegedly caused by defendant employer's negligence. To review a judgment on a verdict for plaintiff, defendant brings error.

Affirmed.

Wheeler & Kenyon, R. W. Smith, Jr., and Chas. J. Thurmond, all of Gainesville, for plaintiff in error.

Hamilton Kimsey, Sam Kimsey, and Herbert Kimsey, all of Cornelia, and Arnold, Gambrell & Arnold, of Atlanta, for defendant in error.

STEPHENS, Presiding Judge.

Flay Heaton filed suit against the Southern Railway Company to recover $20,000 damages on account of personal injuries alleged to have been caused by the negligence of the defendant. It appeared from the petition that the defendant was a carrier engaged in both interstate and intrastate transportation, and that the plaintiff, an employee of the defendant railroad company, was instructed by his foreman to take two of his fellow employees with him on a motor car of the defendant and go to a certain point down the railroad tracks of the defendant for the purpose of repairing a crossing sign; that the plaintiff was in charge of this detail, and after loading certain tools on the motor car, including a crow bar, the plaintiff instructed the other two servants of the defendant to keep a watch over these tools; that the plaintiff drove the motor car along the tracks of the defendant, and it was necessary that he keep a lookout along the tracks ahead of the car; and that there was an opening in the middle of the platform of the motor car, and after the plaintiff and his fellow servants had proceeded some distance down the tracks, the crow bar became disarranged or dislocated from the other tools and slid into this opening striking the plaintiff's leg, throwing him from the car and inflicting the injuries sued for. The plaintiff originally brought his suit specifically under the Federal Employers' Liability Act, and alleged that the defendant furnished him with a defective and unsafe motor car with which to do this work, and that his two fellow servants failed to watch over the tools and particularly the crow bar, thereby causing his injury. He alleged that the defendant company was therefore liable in that it furnished him with a defective and unsafe appliance with which to do his work, and in that his fellow servants were negligent in failing to properly keep a watch over these tools.

The defendant demurred to the petition, both generally and specially. To the judgment overruling its demurrer the defendant excepted pendente lite. Thereafter the plaintiff amended the petition by adding another count thereto in which he alleged substantially the allegations contained in the original petition, except that the plaintiff did not specifically allege therein that the second count was brought under the Federal Employers' Liability Act, and did not allege therein that the defendant was negligent in furnishing to him a defective and unsafe appliance with which to accomplish his work, namely the motor car, but proceeded solely on the theory that his injuries were caused by the negligence of his two fellow servants in failing to keep the proper watch over the tools placed in the motor car. It was alleged therein that "plaintiff brings this second count under such statutes and laws as may be applicable thereto." The defendant renewed its original demurrers to the petition as amended, and added additional grounds of demurrer thereto. To the judgment of the trial court overruling its demurrers the defendant excepted pendente lite.

On the allowance of this amendment ...

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