Southern Ry. Co. v. Simmons

• Decision Date: 17 July 1919
• Docket Number: 10257.
• Citation: 100 S.E. 5,24 Ga.App. 96
• Parties: SOUTHERN RY. CO. v. SIMMONS.
• Court: Georgia Court of Appeals

100 S.E. 5

24 Ga.App. 96

SOUTHERN RY. CO. v. SIMMONS.

No. 10257.

Court of Appeals of Georgia, First Division

July 17, 1919

Syllabus by the Court.

The petition set out a cause of action, and was not subject to general demurrer.

The suit was brought under the federal "Employer's Liability Act" (U. S. Comp. St. §§ 8657-8665), but not on account of any violation of the federal statutes for the protection of employés. Thus the doctrine of assumption of risk was available as a complete defense, since an employé assumes the ordinary risks and hazards of his occupation, and also those risks which are known to him, or which are plainly observable, even though due to the master's negligence and no presumption of negligence existed against the defendant.

The plaintiff was a section hand in the employ of the defendant and was injured while engaged in the work which he was employed to perform. The uncontradicted evidence shows that as to the acts of negligence charged, the defendant used all ordinary care for the plaintiff's safety, unless it be that the foreman was negligent in ordering him to remove the lever car at the time and place he did; and, even though the defendant was negligent in this respect, such negligence was known to the plaintiff, and was plainly observable. He therefore assumed the risk occasioned thereby, and cannot recover.

Error from Superior Court, Habersham County; J. B. Jones, Judge.

Action by Seaborn Simmons against the Southern Railway Company. Judgment for plaintiff, and defendant brings error. Reversed.

A petition, in a railroad employe's action under the federal Employers' Liability Act (45 U.S. C.A. §§ 51-59) for personal injuries while attempting to remove a lever car under the section foreman's direction, held to set out a cause of action as against general demurrer.

Seaborn Simmons brought an action against the Southern Railway Company for personal injuries, under the federal "Employer's Liability Act" of April 22, 1908 (35 Stat. 65, c. 149 [U. S. Comp. St. 1916, §§ 8657-8665]). The allegations of the petition are substantially as follows: That on February 11, 1918, while engaged by the defendant as a section hand, plaintiff was working for the defendant under the direction and control of Dalton Lovell, section foreman, who was in full charge of the section of the defendant's line of road known as the "Baldwin section;" that the plaintiff was directed by Lovell to assist the remainder of the crew in propelling a lever car belonging to the defendant, which was being used to transport the section crew and their foreman from Baldwin, Ga., to Cornelia, Ga., for the purpose of repairing the tracks of the defendant's line of railroad; that when the plaintiff was on the car helping to propel it, and had traveled about half the distance from Baldwin to Cornelia, one of the defendant's passenger trains came around a sharp curve, running at great speed, some 50 or 60 miles per hour, on the main track that the lever car was on; that when Lovell saw the train coming he ordered the section crew to remove the lever car from the track, which they undertook to do, but, on account of the nearness of the train and the great speed at which it was being run, they were unable to remove the car in time to prevent the train from striking it; that when the plaintiff saw that the train was going to strike the car, he undertook to get to a place of safety, but the train struck the car and knocked it from the track and against him, breaking his leg and causing other injuries described. It was further alleged that the defendant had a double track from Baldwin to Cornelia, and an agent at its station at Baldwin whose duty it was to know when trains were due to arrive, and that it was the duty of Lovell, the foreman, to ascertain from the station agent at Baldwin, before starting with the lever car, if any train was due to arrive, and which track it would be on. It is alleged that the defendant was negligent in the following respects: First, in running the lever car on the same track that it was using at the time for its passenger trains at this point; second, in ordering the plaintiff to remove the lever car from the track, as the train was so close to it; third, in not warning the plaintiff of the approach of the train, in running the train at such a great rate of speed, in not stopping the train, and in knocking the lever car from the track and against the plaintiff; fourth, in not using the other track for the lever car, as the defendant knew that the passenger train was on the track at that time and place, and that it was obviously dangerous to operate the lever car on that track. It is further alleged that the plaintiff was without fault, and in the exercise of ordinary care for his own safety, and could not have avoided the consequences of the defendant's negligence by the exercise of ordinary diligence after the negligence of the defendant became apparent; that he did not know of the approach of the train in time to prevent the injuries, and could not have found out about the acts of negligence by the exercise of ordinary care; that it was no part of his duty to look out for trains, but this was the duty of Lovell, the foreman.

Upon the trial of the case it was admitted that both the plaintiff and the defendant were engaged in interstate commerce at the time of the alleged injury. The plaintiff himself testified:

"I had been working with Lovell ever since the last of October; October, November, December, and January. You catch trains on the double track day and night, all the time, plenty of them. * * * They generally run by schedule; they run passenger trains on schedule. I have known one to be late. I know that was late that morning. I thought it was due, thought No. 36 [the train which struck the lever car] was due. I didn't know it. I didn't know about the second 36. I knew they ran extra freight trains there sometimes. I have seen trains of all kinds, extras, and Nos. 78 and 55, 45, 29, and 39, and 44--all kinds. I knew they run trains, and I could look out for one most any time. * * * I knew I could expect a train on that track most any old time. I also know they run extra freight trains, and extra freights and passengers. They run them every once in a while, run a number of trains. When I was on the lever car I was expecting trains most any time."

The plaintiff further testified:

"On the 11th day of February, 1918, we put our car on the track and started to Cornelia to fix a railroad crossing. * * * It was about 7 o'clock I suppose. It was hardly daylight. You could see pretty well. It made the headlight of the engine shine pretty bright. The headlight was shining. * * * There were two tracks, north and south bound main line. * * * I knew I was on the north-bound line. * * * We got about half way from Baldwin to Cornelia, and Dalton Lovell looked back and saw 36 coming, and said 'Boys, let's get off and get the car off.' * * * I had my face towards Cornelia, and the engine was coming behind me. * * * The minute he said, 'Let's get off,' I knew the train was coming. * * * When I first saw the train it was at least 50 yards from me. By reason of it not being quite daylight, I don't suppose I could see him as far as he could see me. I don't suppose I could. * * * I saw the headlight when it was at least fifty yards away. * * * When I got on the ground and started to take the lever car off, it was 50 yards away. * * * I could have seen the headlight 200 yards, I guess, if we looked back. It came around the curve, and came out of the cut there. The cut at the end of the curve was 225 yards where he could have seen us. * * * Cling Buchannon and the other men picked up and left. * * * Cling left me. He had hold of my end. He joined the bird gang, and I still stood and looked at the engine, but was struggling with the lever car. * * * Burton left; it might have been just a little before I did. * * * It might have been just a minute. I say he might have left a little before I did, both of them [Burton and Lovell], but it was not over that. * * * Lovell left before I did, just a little before I did. He had his back to the lever car. I saw him leave, and then I left. I didn't leave quite quick enough. If I had, I wouldn't have got hit. * * * Trains Nos. 36, 37, 38, 40, 42, 29, and 30 always run fast, but didn't run much fast up grade; didn't run much faster than 36 was running the day I got hurt. * * * If Dalton Lovell ever did warn me to get away from the car, that it was going to be struck, after he told me to move it off the track, I didn't hear him."

Dalton Lovell, sworn in behalf of the plaintiff, testified:

"I was section foreman for the Southern Railway on the Baldwin section, and was on the lever car that was struck by the train coming from Baldwin to Cornelia. When I first saw the headlight, the train was about 200 yards from the lever car. When I first saw it I put on the brakes and said 'Let's get off.' * * * The engineer in charge of the train, if there had not been smoke, could have seen the lever car about 200 yards. It was early in the morning and smoky. * * * The first section of train 36 had already run, but the second section had not run. The second section has not got any schedule that I know of. The first section is the one that is on the time-table. * * * If the second section, which struck us, was late, I didn't know it. There was not any operator at Baldwin to tell how late it was. * * * As to my warning Simmons to leave the lever car before he did leave it, I didn't go around and tell him. I always taught them before, when we could not get a car off, to get away. * * * My back was in the direction the train was coming. I had been looking back that way, expecting the train any time. On these

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