Southern Ry. Co v. Bradshaw
| Decision Date | 11 January 1946 |
| Docket Number | No. 31089.,31089. |
| Citation | 37 S.E.2d 150 |
| Parties | SOUTHERN RY. CO. v. BRADSHAW. |
| Court | Georgia Court of Appeals |
Rehearing Denied Feb. 8, 1946.
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Syllabus by the Court.
1. The court did not err in overruling the general and speeial demurrers to the petition.
2. In an action under the Federal Employers' Liability Act, brought in a state court, all matters of substance are controlled by the federal law.
(a) An employer is under the duty of exercising ordinary care in furnishing his employees with tools and appliances that are reasonably safe and suitable for their use.
(b) The master is not bound to furnish the latest or best tools or appliances for the use of his servants.
(c) Ordinarily, an employer is not required to inspect simple tools furnished to employees.
(d) There is no presumption that the tools furnished an employee by the master were insufficient from the mere happening of an accident, and the employee must produce substantial evidence of negligence on the part of the master or his employees to sustain a recovery.
(e) The evidence did not support the verdict for the plaintiff, and the court erred in overruling the defendant's motion for a new trial, based on the general grounds.
3. If the work of a servant is simple in character, and free from complications or complexities, the employer is not negligent in failing to adopt fixed rules or regulations with reference thereto.
Error from Superior Court, Fulton County; Virlyn B. Moore, Judge.
Action under the Federal Employers' Liability Act, § 1 et seq., 45 U.S.C.A. § 51 et seq., by B. H. Bradshaw against Southern Railway Company to recover for personal injuries sustained while in defendant's employ. Verdict and judgment for plaintiff, defendant's motion for new trial was overruled, and defendant brings error.
Judgment reversed.
This is an appeal from a verdict and judgment in favor of B. H. Bradshaw, against Southern Railway Company, in an action brought under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. for damages for an alleged injury. The parties will be referred to as they stood in the lower court.
The plaintiff was employed by the defendant as a signal maintainer. His duties required, among other things, that he climb, with the aid of pole hooks furnished by the defendant, certain poles on which were strung the wires used in the defendant's signal system. The hooks used in climbing the poles were metal devices, to which spurs approximately one and one-half inches in length were attached, and which were strapped to the climber's leg between the foot and the knee. Plaintiff's duties also required that he climb trees at times for the purpose of removing limbs overhanging the wires of the signal system and which were likely to foul the lines. It was alleged that for climbing trees a different climber was used, a device the same as a regular pole climber, except that its spurs were approximately three inches in length. Plaintiff was directed by his foreman to trim the limbs on certain trees, and in so doing to use the pole hooks furnished by the defendant instead of tree hooks which were not furnished. As plaintiff undertook to come down after climbing a certain tree to remove a limb therefrom he was injured when the pole hooks clogged with bark and cut out of the tree, his weight being suddenly shifted, throwing him violently against the tree. It was alleged that the defendant was negligent in failing to provide plaintiff "with reasonably safe tools and appliances, to wit: tree hooks, with which to do his work", which negligence was the direct and proximate cause of plaintiff's injury. Negligence was also alleged in failing to furnish plaintiff with a ladder, or other reasonably sufficient means to go up said tree, and in ordering him to climb said tree with the means provided, and in furnishing plaintiff with spurs or climbers too short to go through the outer bark and into the live bark and wood of a tree, and in failing to prescribe any fixed rule providing for ladders and other reasonably sufficient means to climb trees for the purpose aforesaid.
General and special demurrers were filed by the defendant to the petition of the plaintiff. Two of the special demurrers were sustained and certain allegations of the amended petition stricken. The other special demurrers and the general demurrer were overruled, and the trial resulted in a verdict for the plaintiff. The defendanthas excepted to the overruling of its general and special demurrers and to the refusal of its motion for a new trial.
Neely, Marshall & Greene, of Atlanta, for plaintiff in error.
T. J. Lewis and Jno. T. Dennis, both of Atlanta, for defendant in error.
1. The general rule is that an employer is under a duty to exercise ordinary care to furnish an employee with tools and appliances reasonably safe and suitable for his use. See Southern R. Co. v. Cowan, 52 Ga.App. 360, 362, 183 S.E. 331, and citations. We think the allegations in the petition that the defendant negligently failed to provide the plaintiff with reasonably safe tools and appliances was sufficient to state a cause of action, and the general demurrer of the defendant was properly overruled. Paragraph six of the special demurrer which was overruled, and to which exception is taken, was directed only to that part of subparagraph (f) of paragraph 161/2 as follows: "It (the defendant) was negligent in ordering him (the plaintiff) to climb said tree and remove said limbs therefrom." This allegation was demurred to as being irrelevant and immaterial and inconsistent with the other allegations of the petition, and the fact that the plaintiff was under general orders to keep in order and remove the limbs of trees which might interfere with the signaling devices, and because there is no allegation upon which said allegation of negligence is based; that there was not any order by any of his superior officers to climb the tree and remove the limbs therefrom at or before the time of the alleged accident and injury. The court did not err in overruling the special demurrer to the portion of the petition above quoted, for any reason assigned.
2. In an action under the Federal Employers' Liability Act, though brought in a state court, all matters of substance are controlled by the federal law. Seaboard Airline Ry. v. Horton, 233 U.S. 492(3), 34 S.Ct. 635, 58 L.Ed. 1062, L.R.A.1915C, 1, Ann.Cas. l915B, 475; Central Vermont Ry. Co. v. White, 238 U.S. 507(5), 35 S.Ct. 865, 59 L.Ed. 1433, Ann.Cas.l916B, 252; Central of Georgia R. Co. v. Goens, 30 Ga.App. 770, 773, 119 S.E. 669. The mere happening of an accident will not warrant a recovery; there must be negligence on the part of the railroad company or some of its employees. San Antonio, etc., R. Co. v. Wagner, 241 U.S. 476, 36 S.Ct. 626, 60 L.Ed. 1110. There must be a proximate and causal relation between the injury for which damages are claimed and the negligence of the company. Chesapeake, etc., R. Co. v. Carnahan, 241 U.S. 241, 36 S.Ct. 594, 60 L.Ed. 979. A railroad company is not an insurer of the safety of its employees, and they must, as a part of their duty, exercise due care for their own safety. Kurn v. Stanfield, 8 Cir., 111 F.2d 469. "The employer is under a duty to exercise ordinary care to supply machinery and appliances reasonably safe and suitable for the use of the employee, but is not required to furnish the latest, best, and safest appliances, or to discard standard appliances upon the discovery of later improvements, provided those in use are reasonably safe and suitable." Chicago & Northwestern R. Co. v. Bower, 241 U.S. 470, 473, 36 S.Ct. 624, 625, 60...
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