Western & A. R. R v. Lochridge, (No. 18808.)
| Decision Date | 07 February 1929 |
| Docket Number | (No. 18808.) |
| Citation | 146 S.E. 776,39 Ga.App. 246 |
| Parties | WESTERN & A. R. R. v. LOCHRIDGE. |
| Court | Georgia Court of Appeals |
(Syllabus by the Court.)
Error from Superior Court, Barton County; C. C. Pittman, Judge.
Suit by Mrs. Josephine Lochridge, as administratrix, against the Western & Atlantic Railroad. Judgment for plaintiff, defendant's motion for new trial was overruled, and defendant brings error. Affirmed.
Seth M. Walker, of Nashville, Tenn., Neel & Neel, of Cartersville, Tye & Tye, of Atlanta, and Fitzgerald Hall, of Nashville, Tenn., for plaintiff in error.
Hewlett & Dennis, of Atlanta, W. C. Martin, of Dalton, and Whitaker & Whitaker, of Cartersville, for defendant in error.
BELL, J. Mrs. Josephine Lochridge, as administratrix, brought suit against Western & Atlantic Railroad, under the Federal Employers' Liability Act (45 USCA §§ 51-59), to recover damages for the use of herself and two minor children for the alleged wrongful death of her husband and their father, John Lochridge, in a collision between two of the defendant's trains, upon the engine of one of which Lochridge was employed as fireman. The defendant demurred generally and specially, the court overruled the demurrer, and exceptions were taken. The trial resulted in a verdict for the plaintiff for $20,000. The defendant moved for a new trial, and, this being refused, the case was brought to this court.
The defendant pleaded two defenses: (1) That the decedent's death was caused solely by his own negligence; (2) assumption of risk.
While the bill of exceptions contains assignments upon the overruling of the demurrer, and the proceedings in regard thereto were set up in the record, these assignments are not insisted upon in this court, so that the only questions raised for decision are those presented in the motion for a new trial, or in such of the grounds thereof as have not been abandoned
It is insisted that each of the defenses was sustained by the evidence as a matter of law, so that a verdict should have been directed for the defendant or a new trial granted upon the general grounds. It is also contended that the judge committed a number of material errors in his instructions to the jury, and that the verdict is excessive.
The train upon which Lochridge was firing was a work train, and was known as No. 383. Besides Lochridge, its crew consisted of L. E. Payne, conductor, H. J. Robinson, engineer, Tomlinson, a watchman, one or two brake-men, and a flagman. This train, with its crew, spent the night of June 18, 1924, at Kingston, Ga., where in the early hours of June 19 it received orders to leave for Dalton, a station further north, which it did under clearance from the operator at Kingston at 4:50 a. m. of the latter date. The next station north was Hall's, after which was Adairsville. The distance between Kingston and Adairsville was about 10 miles, and Hall's was about half way.
The collision, which occurred at 5:06 a. m. about a mile and a half south of Adairsville, was with a regular south-bound passenger train known as No. 3, which was due to leave Adairsville at 5 a. m., and which did leave at 5:02. Each train was moving at a speed of approximately 35 miles an hour, as though it had a clear track. No fault was attributable to those in charge of No. 3.
The only passing point between Kingston and Adairsville was at Hall's, where there was a side track nearly a mile long, with switches at each end. The orders which had been received by the conductor and engineer of No. 383 did not mention No. 3, which, without mention, was a superior train and ought to have been given right of way To this end, No. 383 should have taken the siding at Hall's, but it failed to do so, and was thus running on the time of the other train. It had gone about 2 miles beyond the north switch of the side track when the collision occurred.
The petition alleged that the defendant was negligent in failing, through its conductor and engineer, to stop No. 383 at Hall's Station and to cause it to take the side track, so as to permit No. 3 to pass, and in failing to give any warning to the decedent of an intention to go on to Adairsville, and not to stop at Hall's. It was also averred that the conductor was in charge of the train, and that he and the engineer under the defendant's regulations, were responsible for its movements.
There were introduced in evidence certain rules with which Lochridge was presumably acquainted, and among which were the following
。Rule 105. ''Conductor has charge of train and of all persons employed thereon, except when his instructions conflict with the rules or involve risk, in either of which case the engineman will be held alike responsible."
Rule 100. "Run no risks; in case of doubt take the safe side."
Rule 522. "Closely observe train signals; read train orders, keep them in mind, and should there be occasion to do so, remind engineman."
Rule 523. Firemen shall
Rule 524. Firemen shall familiarize themselves
Rule 526. Firemen shall "So regulate fire as to be able to keep a lookout while passing through stations and approaching road crossings."
The evidence showed that to a point a short distance north of Hall's the engine would have needed firing in the usual manner, the track being mostly up grade; thence to the place of the wreck the incline was downward and firing would have been unnecessary.
As the train passed a house between Kingston and Hall's, certain women came out and waved, apparently in response to the continued blowing of the whistle in that vicinity. This was south of the south switch of the side track, and there was no evidence that Lochridge participated in any greetings that may thus have been exchanged.
A witness who lived north of Hall's Station testified to having seen Lochridge "laying" out of the window looking ahead. The train was then about even with the north switch of the side track.
Except as above stated, the evidence was silent as to what Lochridge may or may not have done after leaving Kingston.
There was testimony as to the receipt at Kingston by the conductor and the engineer of the orders with respect to the movement of No 383, but there was no positive evidence that any of these orders ever came into the hands of Lochridge or were read to him by the engineer or any one else However, for the purposes of this case, it will be assumed that he knew or should have known that train No. 3 had right of way and that it was the duty of No 383 to take the siding There was no evidence to show why it was driven on in violation of the rules and orders. R. A. Reagan, flagman, and the only member of the crew of that train who testified, could upon that question merely say that No. 3 was overlooked or forgotten, and this appears to have been a bare conclusion. Five orders were received by the conductor and the engineer, during the night and early morning, prior to their departure, and there is some room for conjecture that these orders might have been misinterpreted, although, for the purposes of this case, it will be taken for granted that they should not have been the defendant so contending
Riding upon the engine with Lochridge and Robinson, the engineer, was Tomlinson, the watchman, and all of them were instantly killed. All other members of the crew, except Flagman Reagan were either inaccessible or unaccounted for at the trial.
There was no other evidence so material here as to require mention in this statement.
1. It cannot be said as a matter of law that Lochridge's death was brought about solely by his own negligence, even assuming that he was negligent, as claimed by the railroad company. It is undisputed that the conductor and the engineer were both negligent, and they were the ones primarily responsible for the movement of the train. To put the case most strongly for the railroad company, the negligence of Lochridge was only contributory, and could not be considered the sole cause. If his death resulted in whole or in part from the negligence of other employees, the defendant is liable under the specific provisions of the statute.
In Illinois Central R. Co. v. Skaggs, 240 U. S. 66 (1), 36 S. Ct. 249, 60 L. Ed. 528, it was held that a recovery under the Federal Employers' Liability Act was supported by evidence by which it could be found that a fellow servant was negligent, and that thereby the injury complained of resulted, although the injured employee may himself have participated in the act which caused the injury. In such a case the fact that the injured employee was himself guilty of negligence contributing to the injury does not bar a recovery, but the damages are to be reduced by the jury in proportion to the amount of negligence attributable to him. See, also, Norfolk & Western Ry. Co. v. Earnest, 229 U. S. 114, 33 S. Ct. 654, 57 L. Ed. 1096.
It is claimed for the railroad company that, if Lochridge had been in the discharge of his duty, he would have called the attention of the engineer to the switch targets and would have "reminded him" of the necessity of taking the siding, and that the company was "entitled to expect that self-protection from its employees." Language similar to this was used by the United States Supreme Court in Chesapeake & Ohio Ry Co. v. Nixon, 271 U S 218, 46 S. Ct....
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