Southern Ry. Co. v. Highsmith
| Decision Date | 16 March 1939 |
| Docket Number | 27176. |
| Citation | 2 S.E.2d 211,59 Ga.App. 659 |
| Parties | SOUTHERN RY. CO. v. HIGHSMITH. |
| Court | Georgia Court of Appeals |
Chas J. Thurmond, R. W. Smith, Jr., and Wheeler & Kenyon, all of Gainesville, for plaintiff in error.
Jno. S. Wood, of Canton, and Arnold, Gambrell & Arnold, of Atlanta, for defendant in error.
This bill of exceptions was taken from an order of court refusing a petition to remove the suit brought in the City Court of Hall County to the United States District Court for the Northern District of Georgia. The suit was brought in two counts. The first count is under the Federal Employers' Liability Act, 45 U.S. C.A. §§ 51-59, and the second count is under the general law applicable in Tennessee for a crossing collision.
In substance the petition sets forth that on December 21, 1937 the decedent Highsmith was in the defendant's employ as assistant signal maintainer; that he worked under the orders of his superior Melton, who was signal maintainer of the defendant; that it was the duty of Melton and the decedent to inspect and work on the electric signal system and the spring switches and parts of the track for a territory of about thirty miles; that it was the general custom and practice of the employees to use either a motor car operating over the rails to go to the place where they were to work or an automobile operating along the highway parallel to the railroad, and it was the general custom and practice to use an automobile when the weather was bad; that on this occasion the track was wet and slippery and the motor car was not well adapted for such weather conditions; that it
could not make the speed because of the wet track but it was open and unprotected; that there was heavy traffic on the railroad at this time which made the use of a motor car slow which had to be removed from the track or run on a siding in time to clear the track for passenger and freight traffic that the day on which the decedent was killed was a half holiday and the next two days were full holidays and because of this the work had to be done as quickly as possible; that the signal maintainer Melton, who had been ill from exposure on the previous day and who would have been unable to do the work by using the motor car and who would have been exposed to additional physical disability had he used the motor car because of the bad weather, decided to use an automobile which he furnished for the use of the defendant for said work, and the defendant's section foreman for that section, the decedent, and the signal maintainer Melton proceeded from Athens, Tennessee, northward for the purpose of inspecting spring switches and they were assisted by the section foreman in that work and by the doing of work on the switches the same would prevent interference with traffic; that they had proceeded with said automobile to a point on the defendant's track where there were certain spring switches which were to be inspected; that the road approaches the crossing up a steep grade; that the automobile was driven by the signal maintainer Melton; that there were obstructions to the view, the same consisting of a heavy growth of brush and small trees, of a bank and other obstructions; that the decedent was riding on the back seat of the automobile and all were engaged in the service of the defendant traveling in a vehicle used in the defendant's service with the defendant's knowledge and consent; that they were upon the defendant's premises and intended after crossing the track to leave the automobile on the defendant's right-of-way, or near thereto, clear of the track, and to work on certain spring switches on defendant's track which were only about twenty feet away from the crossing; that decedent worked under the said Melton and decedent had no control over the movements of the automobile; and that when the automobile got upon the track a passenger train of the defendant, which was not running on schedule time, approached from the north and collided with the automobile and killed all three of the occupants; that the collision occurred as the proximate result of the negligence of the defendant in that the engineer and fireman in charge of the locomotive negligently failed to exercise ordinary care in keeping a proper lookout ahead; in that the train was negligently running sixty miles per hour; in that the crossing was dangerous and the view largely obstructed and in that the engineer failed to signal his approach to said crossing at a reasonable distance from the same, to-wit, three hundred yards, by blowing the whistle of the locomotive; that when the automobile appeared approaching the crossing and just before entering the same, the engineer failed to sound the alarm whistle as ordinary care required; that the defendant negligently failed to keep in repair the railway track; that the defendant failed to properly fill in the spaces between the rails on said crossing and allowed the rails to project up abruptly from four to five inches, which formed an obstruction to the passing of an automobile over the crossing and caused the said automobile to be impeded and slowed up. It is further alleged that the signal maintainer who drove the automobile was negligent in that he was driving upon the crossing without the proper exercise of his senses of hearing and seeing; that decedent had no control over the movements of the automobile, being in the back seat and having no opportunity, as did those in the front part of the same, for observation; that the automobile had only two doors which opened for the front seat, and a person on the back seat had no way of egress therefrom until those on the front seat had opened the doors and turned the seats.
The petition in the first count also alleged that the decedent and his foremen and the defendant were engaged in interstate commerce and it is alleged in paragraphs 23 and 24 of the first count of the petition that the men were working in and about the defendant's track and the signal system connected therewith on which interstate trains and trains engaged in interstate commerce were operating; that the defendant operates a line of railways in the States of Virginia, North and South Carolina, Georgia, Alabama, Tennessee and other states; that the passenger train which collided with the automobile driven by said Melton was likewise engaged in interstate commerce and contained passengers, express and baggage, bound from one state of the Union to another.
The allegations of fact in count one of the petition sufficiently allege that both the decedent and the railway company were, at the time of the accident, engaged in interstate commerce and was sufficient to bring it under the provisions of the Federal Employers' Liability Act. Pedersen v. Delaware, L. & W. R. Co., 229 U.S. 146, 33 S.Ct. 648, 57 L.Ed. 1125, Ann.Cas.1914C, 153; Miller v. Central R. Co., 2 Cir., 58 F.2d 635, and citations; Gray v. Garrison, 49 Ga.App. 472, 176 S.E. 412; Illinois Cent. R. Co. v. Industrial Commission, 349 Ill. 451, 182 N.E. 626, certiorari to the Supreme Court of the United States was denied in Chicago & E. I. R. Co. v. Industrial Commission of Illinois, 284 U.S. 296, 52 S.Ct. 151, 76 L.Ed. 304, 77 A.L.R. 1367; Rocco v. Lehigh Valley Ry. Co., 288 U.S. 275, 53 S.Ct. 343, 77 L.Ed. 743; Smith v. Bugg, 35 Ga.App. 488, 134 S.E. 116; Tharp v. Central of Ga. Ry. Co., 31 Ga.App. 598, 121 S.E. 592. See in this connection Boston & Maine Railroad Co. v. Armburg, 285 U.S. 234, 239, 52 S.Ct. 336, 76 L.Ed. 729, and Wright v. Vinton Branch of Mountain Trust Bank of Roanoke, 300 U.S. 440, 457, 57 S.Ct. 556, 81 L.Ed. 736, 112 A.L.R. 1455, where the Pedersen case, supra, was quoted.
and citations relied on by plaintiff in error are distinguishable on their facts from the instant case.
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