Southern Ry. Co. v. Heaton

• Decision Date: 29 November 1939
• Docket Number: 27773.
• Parties: SOUTHERN RY. CO. v. HEATON.
• Court: Georgia Court of Appeals

6 S.E.2d 339

61 Ga.App. 386

SOUTHERN RY. CO. v. HEATON.

No. 27773.

Court of Appeals of Georgia, Division No. 2.

November 29, 1939

Rehearing Denied Dec. 16, 1939.

Syllabus by the Court. [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]

Wheeler & Kenyon, R. W. Smith, Jr., and Chas. J. Thurmond, all of Gainesville, for plaintiff in error.

Hamilton Kimsey, Sam Kimsey, and Herbert Kimsey, all of Cornelia, and Arnold, Gambrell & Arnold, of Atlanta, for defendant in error.

STEPHENS Presiding Judge.

Flay Heaton filed suit against the Southern Railway Company to recover $20,000 damages on account of personal injuries alleged to have been caused by the negligence of the defendant. It appeared from the petition that the defendant was a carrier engaged in both interstate and intrastate transportation, and that the plaintiff, an employee of the defendant railroad company, was instructed by his foreman to take two of his fellow employees with him on a motor car of the defendant and go to a certain point down the railroad tracks of the defendant for the purpose of repairing a crossing sign; that the plaintiff was in charge of this detail, and after loading certain tools on the motor car, including a crow bar, the plaintiff instructed the other two servants of the defendant to keep a watch over these tools; that the plaintiff drove the motor car along the tracks of the defendant, and it was necessary that he keep a lookout along the tracks ahead of the car; and that there was an opening in the middle of the platform of the motor car, and after the plaintiff and his fellow servants had proceeded some distance down the tracks, the crow bar became disarranged or dislocated from the other tools and slid into this opening striking the plaintiff's leg, throwing him from the car and inflicting the injuries sued for. The plaintiff originally brought his suit specifically under the Federal Employers' Liability Act, and alleged that the defendant furnished him with a defective and unsafe motor car with which to do this work, and that his two fellow servants failed to watch over the tools and particularly the crow bar, thereby causing his injury. He alleged that the defendant company was therefore liable in that it furnished him with a defective and unsafe appliance with which to do his work, and in that his fellow servants were negligent in failing to properly keep a watch over these tools.

The defendant demurred to the petition, both generally and specially. To the judgment overruling its demurrer the defendant excepted pendente lite. Thereafter the plaintiff amended the petition by adding another count thereto in which he alleged substantially the allegations contained in the original petition, except that the plaintiff did not specifically allege therein that the second count was brought under the Federal Employers' Liability Act, and did not allege therein that the defendant was negligent in furnishing to him a defective and unsafe appliance with which to accomplish his work, namely the motor car, but proceeded solely on the theory that his injuries were caused by the negligence of his two fellow servants in failing to keep the proper watch over the tools placed in the motor car. It was alleged therein that "plaintiff brings this second count under such statutes and laws as may be applicable thereto." The defendant renewed its original demurrers to the petition as amended, and added additional grounds of demurrer thereto. To the judgment of the trial court overruling its demurrers the defendant excepted pendente lite.

On the allowance of this amendment the defendant files its petition to remove the cause to the Federal court on the ground of diversity of citizenship. The trial judge denied the defendant's petition to remove, and ordered the case to proceed to trial. To this judgment the defendant excepted pendente lite. The case proceeded to trial. At the conclusion of the evidence the plaintiff announced that he would not insist upon the cause of action as alleged in the original petition, and requested the court to submit to the jury only the cause of action as set forth in the second count. The trial resulted in a verdict for the plaintiff for $10,000. The defendant moved for a new trial on the general grounds, and by amendment, added several special grounds. To the judgment overruling its motion for new trial as amended the defendant excepts. The defendant also assigns error in the bill of exceptions on the exceptions pendente lite.

The petition as originally filed was not subject to demurrer on the ground that it appeared that the plaintiff was a vice-principal, and had equal means with his foreman of acquiring knowledge as to the alleged defective and unsafe condition of the motor car. The fact that the plaintiff's two fellow servants were placed under the plaintiff's immediate direction and control, in so far as the particular work for the defendant which they were to accomplish was concerned, does not necessarily make the plaintiff a vice-principal, as contended by counsel for the defendant railroad company. It appears that all three of these employees of the railroad company were engaged in the performance of the same work. The plaintiff was a mere fellow servant with direction over the other two servants as to the accomplishment of the work. See Whitfield v. L. & N. Railroad Co., 7 Ga.App. 268, 270, 66 S.E. 973; McDonald v. Eagle & Phenix Mfg. Co., 68 Ga. 839, 844; Cates v. Itner, 104 Ga. 679, 30 S.E. 884. The petition alleged that the car furnished the plaintiff was an old official car, and was not constructed for the purpose of hauling tools or material, that it was wholly unsuited for the use to which the defendant placed it, and was unsafe to be used for that purpose, that these facts were well known to the defendant, that the plaintiff had not had any experience with a car of this character, and did not know of the danger incident to the use and operation of it when being used to haul tools and materials. Construing the allegations of the petition most strongly against the pleader, as must be done, it can not even then be said that the plaintiff knew, or in the exercise of ordinary care should have known, that this motor car was defective for the purpose used, and was an unsafe appliance. At least it was for the jury to say whether or not the defendant assumed the risk of his employment by riding upon and driving the motor car furnished him by the defendant railroad company. It does not appear from the allegations of the petition that the defective and unsafe condition of the motor car was so obvious that as a matter of law the defendant knew or should have known of its condition. The assumption of risk by a servant is a question for the jury and should not be decided by this court on demurrer except in plain and indisputable cases. Grant v. F. S. Royster Guano Company, 15 Ga.App. 758(4), 84 S.E. 161. Furthermore, the first count was expressly under the Federal Employers' Liability Act, and alleged that the railroad company had furnished the plaintiff and his fellow employees a defective and unsafe appliance or equipment with which to do the work assigned to him by the foreman of the defendant company, in violation of that act. In such case such an employee will not be held to have assumed the risk of his employment. U.S. C.A. Title 45, § 54.

There is no question in the case as now before this court, under the second count and under the evidence, as to the liability of the defendant predicated upon any failure on its part to furnish to the plaintiff a safe motor car, free from defects, with which to do his work. The first count in which this proposition was pleaded was expressly abandoned and the case was submitted to the jury on the second count alone, which count was predicated solely upon the alleged negligence of the plaintiff's two fellow servants in failing to properly watch the tools as the motor car was proceeding down the tracks of the defendant railroad company with the plaintiff as its driver. Both under the laws of this state, and of the United States, the railroad company is liable for an injury caused to one of its servants as the result of the negligence of a fellow servant, while engaged in the performance of the duties of his employment. Code, § 66-304; U.S. C.A. Title 45, § 51. It follows that the court did not err in allowing the plaintiff's amendment setting up the second count, and in overruling the defendant's demurrer thereto. Rose & Dasher v. Taylor, 26 Ga.App. 700, 106 S.E. 922; Blyth v. White, 49 Ga.App. 738(2), 176 S.E. 830.

Count 2 of the petition as amended was demurred to as being duplicitous in that it contained substantially the same allegations as appeared in count one. It should be noted that count 1 was afterwards abandoned and that the trial was had only on count 2. The basis of the ground of the demurrer was removed. Therefore there appears no error prejudicial to the defendant in the court's overruling the demurrer. See Gainesville & D. Electric Railway Co. v. Austin, 122 Ga. 823, 50 S.E. 983.

It does not appear as a matter of law from the pleadings or from the evidence that the proximate efficient and controlling cause of the injury to the plaintiff was the manner and method adopted by the plaintiff in loading the crow bar on the motor car, which was obviously so constructed that as a natural incident to the vibration resulting from the operation of the motor car along a railroad track, the crow bar would be jolted from its post and would fall. There was sufficient evidence to authorize the verdict for the plaintiff on the theory that the plaintiff's injuries were the direct and proximate result of the failure of at least one of his...