Southern Ry. Co. v. Allen

• Citation: 77 S.E.2d 277,88 Ga.App. 435
• Decision Date: 18 June 1953
• Docket Number: Nos. 34625,No. 1,s. 34625,1
• Parties: SOUTHERN RY. CO. et al. v. ALLEN. SOUTHERN RY. CO. v. ALLEN et al. SMITH v. ALLEN et al. to 34627
• Court: United States Court of Appeals (Georgia)

Page 277

77 S.E.2d 277

88 Ga.App. 435

SOUTHERN RY. CO. et al. v. ALLEN.

SOUTHERN RY. CO. v. ALLEN et al.

SMITH v. ALLEN et al.

Nos. 34625 to 34627.

Court of Appeals of Georgia, Division No. 1.

June 18, 1953.

Syllabus by the Court.

1. An individual resident defendant may be sued jointly in a joint action outside the county of his residence with a nonresident corporation defendant having an office and agent in the county in which the action is brought.

2. Where an employee of an interstate carrier by rail is killed by the combined negligence of his employer through fellow employees and the negligence of another interstate carrier by rail, the right of action for the homicide is not confined and restricted to a single action against his employer under the Federal Employers' Liability Act, but an action may be brought against the other non-employing carrier alone or jointly with his employer under State law.

3. The grounds of the amended motion for a new trial covered in divisions 3, 4, 5, 6, 7, and 9, which were argued, show no reversible error.

4. It was error to refuse the requested charge shown in ground 38.

5. Grounds mentioned in divisions 8 and 11 and grounds 51, 52, and 53 are not passed on either because they were not argued or because to do so is deemed unnecessary since the case is to be tried again.

6. The court erred in charging the jury that the violation of a specific company rule constituted negligence.

Mrs. Jeanette Tucker Allen sued Southern Railway Company and one of its engineers, L. A. Smith, in the City Court of Macon, Bibb County, Georgia, to recover for the alleged tortious death of her husband. The petition as amended alleged in substance: The plaintiff is the widow of G. E. Allen, who, on March 28, 1951, was a switchman for the Macon, Dublin and Savannah Railroad; and the defendant L. A. Smith was an engineer for Southern Railway Company during the month of March, 1951, and on or about March 28, 1951, was operating locomotive number 4887 for said company. The defendants have injured and damaged the plaintiff in the sum of $82,313; on March 28, 1951, between 5 and 6 a. m., the plaintiff's husband, while engaged in his duties as a switchman, was fatally injured and died on the following day as a result of the negligence of the defendants. The deceased was fatally injured while on top of the lead car of a transfer of twenty freight cars which had been pushed into the Southern Railway freight yards near Macon when Southern Railway engine number 4887 backed into said freight cars. It was and has been the duty of the Macon, Dublin and Savannah Railroad to transfer to the Southern Railway cars containing freight which had originated on its lines when the freight was destined to point on or connecting carriers of the Southern Railway, and it was likewise the obligation of the Southern to receive and accept said cars and to designate a track through its yard to the point where said transfer was to be delivered. Both Macon, Dublin and Savannah Railroad and the defendant Southern Railway were engaged in the operation of railroads in interstate commerce, and their duties and obligations as alleged above arose under the terms of the Interstate Commerce Act as amended, Title 49, U.S.C.A. § 1 et seq., and particularly § 1(10), 1(11), 1(13) and 1(14) thereof, and under Car Service Rule 7 of the Association of American Railroads which was established by carriers, including the above named two. Said Rule 7 is as follows: 'Cars shall be considered as having been delivered to a connection railroad when placed upon the track agreed upon and designated as the interchange track for such deliveries, accompanied or preceded by proper data for forwarding and to insure delivery, and accepted by the car inspector of the receiving road.' Macon, Dublin and Savannah Railroad was in the act of transferring said cars to the Southern Railway's yards after having been advised by J. T. Faircloth, chief caller of the Southern, to move said cars on the main line track in said yards; Faircloth was authorized by the defendant railroad to give said advice and instructions, and as its chief caller had been delegated the responsibility by the Southern of designating the track to be used by the Macon, Dublin and Savannah Railroad through its yard as required by the statute and rule heretofore alleged. For a period of five years prior to March 28, 1951, Faircloth had been designating tracks to be used by the Macon, Dublin and Savannah Railroad in delivering freight cars to the defendant Southern Railway. While the Macon, Dublin and Savannah Railroad transfer was proceeding south at a rate of speed of less than ten miles per hour, the aforesaid Southern locomotive, moving backwards in the opposite direction, was proceeding north on the same track; such main line track was straight for a distance of a mile or more. As soon as it appeared that said Southern locomotive was not going to take a switch to another track, the train on which the plaintiff's husband was riding was brought to a stop. At this time the Southern locomotive was approximately three hundred feet south of said transfer train; it was completely dark and the defendant Smith was not maintaining a lookout, nor was there any employee on the rear of such locomotive. There is a rule of the defendant railroad applicable to all locomotives and trains operating in its yard, which requires that no train or locomotive shall be operated at a rate of speed greater than that at which it can be stopped within half of its engineer's vision; 'the said locomotive was traveling at a speed in excess of that with which it could have been stopped within half the vision of the train on which plaintiff's husband was riding.' Instead of reducing speed as it approached the lead car on the Macon, Dublin and Savannah transfer, said Southern locomotive, under the control of the defendant Smith, increased its speed to at least twenty miles per hour. The tank or cistern of the Southern locomotive struck with great force the front of the lead car of the Macon, Dublin and Savannah transfer; the blow was so great that the cistern was pulled loose from the frame, and it and the lead car on the said transfer were both pushed at an angle into another car which was located on an adjoining track a distance of some twelve or fifteen feet. The plaintiff's husband tried to reach a place of safety, but was unable to do so on account of the high rate of speed of said Southern locomotive. The plaintiff specifies the following acts of negligence which proximately caused the death of her husband: in operating said locomotive number 4887 on the main-line track when the defendants knew that the Macon, Dublin and Savannah transfer with twenty cars was proceeding south on said track; said defendants failed to maintain a proper lookout as they were reversing their locomotive in a northerly direction on said main-line track; said defendants were operating said locomotive at a rate of speed which was greater than reasonable and safe and in violation of the rule stated above; said defendants were operating said locomotive at a rate of speed which made it impossible for them to bring it to a stop before hitting the freight car on which the plaintiff's husband was located; said defendants failed to have some member of its train crew or engine crew on the rear of said locomotive as it was being operated in reverse; said defendants failed to stop said locomotive before hitting the car on which the plaintiff's husband was located. The plaintiff shows that her husband was free from fault, and that the sole cause of his death was the acts of negligence on the part of the defendants heretofore specified.

The defendant Southern Railway Company filed the following demurrers to the petition and the petition as amended: generally, because no cause of action is set out; specially to the words 'as soon as it appeared' in paragraph eleven of the petition, for the reason that this allegation is vague, ambiguous, and indefinite and contains no fact showing or tending to show when or where it appeared that the 'Southern locomotive was not going to take a switch to another track'; specially to the word 'defendants' occurring in sub-paragraph (1) of paragraph eighteen of the petition, for the reason that it does not appear therein or elsewhere in the petition what agent or employee of this defendant knew that the Macon, Dublin and Savannah transfer with twenty cars was proceeding south on the main-line track; generally to the petition as amended, because no cause of action is alleged, in that the petition shows that the presence of the Macon, Dublin and Savannah transfer and that of the deceased was due to, required by, and in observance of an act of Congress, enacted for the purpose of regulating commerce between the states, and rules, regulations, and practices with respect to car service promulgated and established pursuant to that act; and that therefore the plaintiff cannot maintain this action against Southern Railway Company, but that any right of action against either of the interstate carriers arising out of the death of her said husband as described in the petition as now amended would be under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., would have to be brought by his personal representative, and against Macon, Dublin and Savannah Railroad Company.

The defendant Smith demurred to the petition and to the petition as amended as follows: generally, because no cause of action is alleged; specially to the words 'as soon as it appeared' in paragraph eleven of the petition, for the reason that this allegation is vague, ambiguous, and indefinite and contains no fact showing or tending to show when or where it appeared that the 'Southern locomotive was not going to take a switch to another track'; generally, because the petition shows that Southern Railway Company is a corporation of the State of...