Southern Ry. Co. v. Blanton

• Decision Date: 16 July 1937
• Docket Number: 26043.
• Citation: 192 S.E. 437,56 Ga.App. 232
• Parties: SOUTHERN RY. CO. v. BLANTON.
• Court: Georgia Court of Appeals

192 S.E. 437

56 Ga.App. 232

SOUTHERN RY. CO. v. BLANTON.

No. 26043.

Court of Appeals of Georgia, First Division

July 16, 1937

Rehearing Denied July 27, 1937.

Syllabus by the Court.

1. Ordinary risks under the Federal Employers' Liability Act (45 U.S. C.A. § 51 et seq.) are those which are normally and necessarily incident to the employment. In the absence of special contract the employee assumes such risks without qualification. Extraordinary risks are those that are not normally and necessarily incident to the employment, and which the employee does not assume until he has notice thereof, unless the dangers arising therefrom are so obvious that an ordinarily careful person, under the circumstances would observe and appreciate them. The negligence of the master or of the fellow servant is included within the latter class.

2. The petition set out a cause of action, and the court properly overruled the general demurrer. None of the grounds of special demurrer to either of the two counts of the petition discloses reversible error.

3. Under the Federal Employers' Liability Act (45 U.S. C.A § 51 et seq.), the fact that the employee is guilty of contributory negligence "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."

4. The plaintiff failed to sustain by his evidence any of the allegations of negligence on the part of the defendant, and the verdict was without evidence to support it. The court erred in overruling the motion for new trial.

Error from Superior Court, Haralson County; J. R. Hutcheson, Judge.

Action by Mrs. Esther Blanton, as administratrix of the estate of Will Blanton, against the Southern Railway Company for alleged negligent homicide of Will Blanton, deceased. To review a judgment for plaintiff, defendant brings error.

Reversed.

MacINTYRE J., dissenting.

Walter Matthews and E. S. Griffith, both of Buchanan, and Maddox Matthews & Owens, of Rome, for plaintiff in error.

Arnold, Gambrell & Arnold, of Atlanta, for defendant in error.

PER CURIAM.

Mrs Esther Blanton, as administratrix of her husband, Will Blanton (hereinafter referred to as the decedent), brought this action against Southern Railway Company to recover damages for the alleged negligent homicide of the decedent. The petition is in two counts. The questions for determination are (1) whether the court erred in overruling general and special demurrers to the petition as amended, and (2) whether it erred in overruling the motion for a new trial as amended.

By paragraph, the material parts of the first count are substantially as follows: (3) On April 29, 1935, the decedent was working as a brakeman on the defendant's freight train, both the decedent and the defendant being engaged in interstate commerce. (4) "At 11:20 a. m. on said date while the decedent was engaged as a brakeman on a freight train in Bremen, Haralson County, Georgia, he was struck, mashed, and fatally injured in a collision between the train which he was assisting to operate and an automobile at a sidetrack crossing over the paved street leading from the school house to the railroad station, in manner hereinafter set out. (5) The main line of the defendant's railroad through said town runs east and west. The sidetrack runs almost parallel to the main track at that point a distance of about one hundred yards north of the main track. * * * (6) At said time the defendant was operating a train of two or three box cars, and said train was being operated backward and was traveling in an easterly direction. (7) The paved street leading across said sidetrack runs north and south and slopes from the north at a considerable grade. At the northwest corner of this intersection, about thirty feet from the pavement and adjacent to the railroad, was a warehouse fifteen or twenty feet in height, and north of the warehouse was a dirt road entering the paved road. About thirty yards northwest of said railroad crossing was a high embankment, and on this embankment were several houses. There were also other buildings and trees on each side of the railroad in the immediate vicinity, and the whole area in that section was thickly settled both with houses and industrial plants. It was a cloudy day, and the pavement * * * was wet. (8) Said obstructions on the northwest corner were so grouped that the view of one approaching the crossing from a northerly direction along said street could not extend west on said track beyond the eastern corner of said warehouse until he reached a point within fifteen or twenty feet of said crossing. (9) There were also several bushes and vines between said warehouse and said road adjacent to said crossing, said vines and bushes extending from five to ten feet in height. (10) There were six members of said crew, the head brakeman, * * * Blanton, the deceased, another brakeman, the flagman, the conductor, the engineer, and fireman. At said time only the engineer, fireman and the deceased were operating the train, the others being at the time away from their posts of duty in the actual operation of the train and several hundred yards from the point of collision. (11) As said train moved east along said sidetrack * * * approaching said crossing and when the end box car, backing up as aforesaid, was within from twenty to thirty yards of said crossing, decedent, who had been riding on the said box car, jumped off the said box car while it was traveling at a speed of about six to eight miles per hour, and ran a few feet ahead of said train and made an effort to flag said crossing. [Substituted for the original paragraph 11 by amendment]. (12) As decedent reached said crossing, he waved his hand quickly to stop * * * an automobile approaching said crossing from the north, but before he had time to complete the flagging of said automobile and before he had given any signal to the engineer of the train on the crossing, said train, which had continued to move unchecked and at the same rate of speed, was already crossing the crossing, and the automobile, which had been going straight along said pavement, had, upon the approach of the train, turned suddenly to the right, and the deceased, who was then standing on the side of the pavement a little to the west side of the road, turned but was hemmed in by the approaching automobile, and as he attempted to jump into the box car which was moving along him he was pinned between the side of the skidding automobile and the * * * car and mashed so severely that he died an hour afterward. (13) The train continued to move for two car lengths or more after the collision before it stopped. (14) The automobile stopped almost instantly upon the collision, and the moving train continued to grind against said automobile as it moved along, the automobile, after it stopped, being on the west side of the pavement adjacent [to] and north of the railroad. (15) Defendant was negligent in that said train was so operated that it approached and cut off decedent's opportunity to retreat from the path of said automobile and caused decedent to be caught between said train and said automobile. (16) If said train had stopped or had slowed its speed, decedent could have stepped from the path of said automobile even after it turned its course and have been saved, and the defendant was negligent in that it failed to stop the train or to slow its movements before it reached said crossing. (17) Said automobile was traveling straight down the highway, and had said train stopped when decedent began waving to said automobile, said automobile would have passed said crossing without colliding either with the train or with decedent, and defendant was negligent in not stopping said train when the engineer and fireman in charge of said train saw or in the exercise of ordinary care should have seen decedent waving his hand in such manner as to indicate danger from approaching traffic. * * * (18) Defendant was negligent in that the engineer and fireman in charge of said train * * * failed to stop said train when they saw or in the exercise of ordinary care should have seen decedent waving his hands vigorously in the direction from which vehicles were approaching, and the engineer and fireman knew or should have known that the gestures of the decedent indicated danger of a collision. (19) Defendant was negligent in that the engineer and fireman * * * caused said train to move * * * when they saw or should have seen decedent waving in a manner that indicated danger, and in going on the track before the decedent had had time to complete his warning to the approaching automobile and before he had actually given the engineer any signal to move the train onto and over the crossing. (20) The automobile was going straight down the street south at the time the decedent began flagging, and if the engineer had waited for a signal from the decedent before entering upon said crossing, said automobile would have passed over the said crossing before the train reached it. (21) There was no other obstacle in the road at said point at said time to the south of decedent's position except the approaching train which could have obstructed decedent's retreat from the path of said automobile as it turned to the right at said point, and the defendant was negligent in running its train upon said crossing at said time and cutting off the opportunity of decedent for retreat and in causing him to be entrapped between the rapidly skidding automobile and the moving train. (22) Said crossing was obstructed on all sides as aforesaid, particularly on the northwest side, by buildings and trees and embankments, and the engineer and fireman * * * knew that said crossing was so obstructed and was a blind...