Southern Ry. Co v. Blackwell

• Decision Date: 26 July 1917
• Docket Number: (No. 8109.)
• Parties: SOUTHERN RY. CO. v. BLACKWELL.
• Court: Georgia Court of Appeals

93 S.E. 321

(20 Ga.App. 630)

SOUTHERN RY. CO.

v.BLACKWELL.

(No. 8109.)

Court of Appeals of Georgia, Division No. 1.

July 26, 1917.

(Syllabus by the Court.)

Error from Superior Court, Whitfield County; A. W. Fite, Judge.

Action by Gyp Blackwell against the Southern Railway Company. There was a judgment for plaintiff, and defendant brings error. Reversed.

Geo. G. Glenn and Maddox, McCamy & Shumate, all of Dalton, for plaintiff in error.

Wm. E. Mann and W. C. Martin, both of Dalton, for defendant in error.

WADE, C. J. [1] Gyp Blackwell instituted an action against the Southern Railway Company for personal injuries. The action was brought under the federal "Employers' Liability Act" of April 22, 1908. The allegations of the petition were substantially as follows: That on September 21, 1914, while the plaintiff was in the employment of the defendant as a section hand, at work on the "Dalton section, " the foreman who had charge of the work, and whose orders he was bound to obey, directed him to obtain from the section toolhouse in Dalton, Ga., a certain "slag buggy" belonging to the defendant, and to proceed down the defendant's railroad track with it; that the "slag buggy" is a two-wheel contrivance, which runs on one of the rails of the railroad track, and is pushed by any one propelling it; that it was to be carried south, and the plaintiff was pushing it in that direction as ordered by his foreman, and his face was towards that direction, and he was in a bent or stooping position, performing his work and duties as directed by the foreman, and had advanced about one mile south of Dalton, when a passenger train of the defendant ran down upon him and, as he was attempting to get out of the way of the train, it struck the "slag buggy, " which he was pushing, and knocked it with great violence against him, breaking his leg and causing other injuries described. It was further alleged that it was the custom of the section hands to go out at 6:30 o'clock a. m., and this fact was known to defendant, its servants, agents, and employes; that the defendant was negligent in running the train at the high and rapid rate of 60 miles per hour "at the point and along the place where employés were expected at this time in the morning, and where in the exercise of ordinary care they could have seen petitioner, " and in not keeping a lookout at this point, as ordinary care and diligence required, and in failing to see him, as the engineer and fireman of the train would have done, had they exercised ordinary care; in not having the train under such control, so as to avoid injuring him, and in failing to warn him of the approach of the train, by blowing the whistle or ringing the bell; that, if the engineer and other servants of the defendant had exercised ordinary care and diligence, they could have seen that the plaintiff was in a stooped and bent position, with his back towards them, and that the only way of escape from this perilous position was by warning from the employes in charge of the train. The plaintiff further alleged, by amendment, that the defendant was negligent, in that its section foreman failed to place some one in charge of him to help with the "slag buggy, " and in failing to notify "the operator" and have him provide means to warn the plaintiff of the approach of the train, and provide for his protection. The verdict was in favor of the plaintiff, the defendant's motion for a new trial was overruled, and the movant excepted.

Counsel for the plaintiff in error in their brief say:

"The sole insistence that will be made in this brief is upon the general grounds of the motion for a new trial, we believing that, under the undisputed testimony in the case, plaintiff was injured by one of the risks assumed by him in undertaking defendant's employment; that no negligence is shown whatever upon the part of the defendant's agents; and that there can be no legal recovery by plaintiff."

The action being brought under the federal Employers' Liability Act, the provisions of that act are controlling, and the case must be adjudicated in accordance therewith. It is well settled that under the provisions of this act the plaintiff assumed whatever risks were normally incident to his employment. "In a suit brought under the federal 'Employers' Liability Act, ' except generally as to violations of federal statutes for the protection of employés, assumption of risk is an absolute defense, while contributory negligence merely reduces the damages. Roberts' Injuries to Interstate Employés, § 103; Sea-board Air Line Ry. v. Horton, 233 U. S. 492, 34 Sup. Ct. 635, 58 L. Ed. 1062, L. R. A. 19150, 1, Ann. Cas. 1915B, 475." Charleston, etc., Ry. Co. v. Sylvester, 17 Ga. App. 85, 86 S. E. 275 (1). One of the risks assumed by the plaintiff in this case (who was employed as a track hand), upon entering the service of the railway company, was the danger ordinarily incident to the usual and proper operation of its trains over the track upon which he was at work. This proposition is the fundamental principle underlying the decision of the Supreme Court in the case of L. & N. Railroad Co. v. Kemp, 140 Ga. 657, 79 S. E. 558. In that case the injured employé was foreman of a force of section hands in charge of a section of the defendant's railroad. His duties required him to inspect and maintain the tracks and roadway upon his section. While on a tour of inspection of the tracks, he was confronted with an emergency produced by the sudden appearance of a freight train, operated in the usual method, which rounded a curve, and in an effort to remove from the track the hand car on which he was riding, and avoid the impending danger to himself and his hand car, he was injured. It was expressly ruled in that case that under this state of facts the plaintiff could not recover.

To justify a recovery for an injury caused by a train striking a section hand while engaged in repairing a track, it must be shown that the proximate cause of his injury was the railway company's neglect of some duty due to him in respect to his protection from injury by passing trains. Upon this subject, it was said in the case of Norfolk & W. Ry. Co. v. Gesswine, 144 Fed. 56, 75 C. C. A. 214:

"This man was one of a number of men who were employed as section men on the railroad. They were engaged in repairing the track, taking out rails, putting in new ones, taking out cross-ties and putting in new ones, and hewing them into proper form and shape, and were working on the railroad track, while the trains were being operated in the usual way—manifestly, a place of danger. A railroad does not suspend the operations of its trains until the track can be put in order, and the proposition to these section men was: 'We will run the trains and operate the road as heretofore, as we ordinarily do, and between trains you must do this work and look out for yourselves to avoid being injured by the trains'—and the section men accept the employment upon those terms, and if an accident occurs, and they are hurt while the trains are being managed and operated in the usual and ordinary way, they can have no just ground of complaint against the railroad; it is not the fault of the railway company."

See, also, Aerkfetz v. Humphreys, 145 U. S. 418, 12 Sup. Ct. 835, 36 L. Ed. 758; Morris v. Boston & Maine Rd., 184 Mass. 368, 68 N. E. 680. In the case of Woods v. St. Louis & S. F. R. Co., 187 S. W. 11, the Supreme Court of Missouri said:

"It is not the duty of a railroad company to notify section men that any certain trains are expected to pass over the road, but it is their duty to be on the lookout and keep out of the way."

And in the case of Ellis v. Louisville, etc., Railway Co., 155 Ky. 745, 160 S. W. 512, it was held:

"When a flagman is sent out to watch for trains and warn them of danger, the railroad company and its trainmen have a...