Williams v. Western & A.R. Co.
| Decision Date | 03 August 1917 |
| Docket Number | 8250. |
| Citation | 93 S.E. 555,20 Ga.App. 726 |
| Parties | WILLIAMS ET AL. v. WESTERN & A. R. CO. |
| Court | Georgia Court of Appeals |
On rehearing, September 27, 1917.
Syllabus by the Court.
Under the evidence in this case, even if it was erroneous to refuse to allow the amendment to the petition, the error was not harmful to the plaintiffs; and the court did not err, either in granting a nonsuit, or in refusing to reinstate the case.
Additional Syllabus by Editorial Staff.
In action for death of a railroad servant, killed by the explosion of a power plant, where there was no direct proof as to how the gas escaped or accumulated, or that doors or windows were closed, nor any evidence of what deceased did after entering room, the happening of the accident was no proof of the employer's negligence, and the plaintiffs had the burden of proving it.
Error from Superior Court, Fulton County; J. T. Pendleton, Judge.
Suit by Jennie L. Williams and another against the Western & Atlantic Railroad Company. Judgment of nonsuit, and plaintiffs bring error. Affirmed.
Westmoreland Anderson & Smith and Alfred C. Broom, all of Atlanta, for plaintiffs in error.
Tye Peeples & Tye, of Atlanta, for defendant in error.
Chester A. Williams, nineteen years of age, was killed by an explosion at a power plant of the Western & Atlantic Railroad Company, by which he was employed at the time as what is known as a "maintainer." The first suit for this homicide was brought by Mrs. Jennie L. Williams, mother of the deceased. Demurrer was filed and sustained. Upon appeal the Supreme Court (142 Ga. 696, 83 S.E. 525) held:
"Where suit was brought by a mother for the homicide of her son by a common carrier by railroad, the deceased son having been an employé of the railroad, and a demurrer was filed to the petition on the ground that the father was not joined with the mother and was a necessary party plaintiff to the action (there being no personal representation of the deceased), since the passage of the railway employers' liability act of 1909 (Civil Code 1910, § 2782), it was not error to sustain such demurrer."
The second suit was brought by Mrs. Jennie L. Williams and C. L. Williams, based, as was the former suit, upon the act referred to above. In their petition they alleged that they were the mother and the father of Chester A. Williams, and the last paragraph of the petition was as follows: "That the plaintiffs bring this suit against the defendant for the negligent homicide of their son, as hereinbefore alleged, and sue for the full value of his life, and lay their damages at the sum of $50,000, for which they ask judgment against the defendant."
At the appearance term the defendant filed a plea denying liability. When the case was called for trial on the 28th day of September, 1915, the defendant amended its plea by alleging that at the time of the death of Chester A. Williams it was a common carrier by railroad, engaged in commerce between the state of Georgia, the state of Tennessee, and other states of the United States, and that at that time Chester A. Williams was employed by the defendant and was also engaged in such commerce. The trial proceeded, and, when the evidence for plaintiff was in, the defendant moved the court for a nonsuit:
"On the ground that the plaintiff had failed to prove the cause of action set forth in the petition, the specific ground of said motion being that the cause of action set forth in the petition was filed and prosecuted under the employers' Liability Act of the state of Georgia, while the evidence disclosed that the injury was sustained while both the defendant and the decedent were engaged in interstate commerce, and upon the further ground that the evidence disclosed that the defendant had not been shown guilty of any negligence which caused the death of decedent."
Thereupon the plaintiffs offered to amend their petition by so changing the title of said case that it would read "Mrs. Jennie L. Williams and C. L. Williams, as Administratrix and Administrator of the Estate of Chester A. Williams, Deceased, v. Western & Atlantic Railroad Company," and by alleging that the plaintiffs were the duly appointed personal representatives of the estate of Chester A. Williams, and that as such they had qualified, and that "said Jennie L. Williams, mother, and C. L. Williams, father, of the intestate, are the sole beneficiaries," and by striking from the twelfth paragraph above quoted the words, "and sue for the full value of his life," and substituting in lieu of such stricken allegation the following: "And sue for the pecuniary value of the life of the deceased." The court refused to allow this amendment, and sustained a motion for nonsuit. The plaintiffs filed a bill of exceptions pendente lite, covering the rulings of the court in refusing to allow the amendment and in granting the order of nonsuit.
On the 23d of October, 1915, during the term at which the nonsuit was granted, the plaintiffs presented to the trial judge their petition to set aside the order disallowing the amendment and the order granting nonsuit, and to reinstate the case. The court refused the motion to reinstate, in the following words:
"In this case I seriously doubt whether, after granting the nonsuit, it is matter of discretion to set aside the order; but [I think] that the motion ought to be determined as matter of law, and I put my refusal to grant the motion on the question that under the law I ought to refuse it."
The refusal to allow the proffered amendment, the grant of nonsuit, and the refusal to reinstate the case are all before us for review.
Chester A. Williams, at the time of his death, was a "maintainer" at the yards of the defendant in Fulton county, Ga. A part of the work of a "maintainer," as shown by the evidence, was to keep up the telephones that connected the towers in which the men who handled the switch levers worked, and that were used for the purpose of giving the levermen information as to the movement of trains, and to look after the repairs to switches, signals, and targets, "which control the movements of all trains running over those tracks." The evidence also shows that all the trains passing over the tracks where the decedent was "maintainer," including all that went out of and came into Georgia on the track of the defendant, and trains "operated over the Nashville, Chattanooga & St. Louis and Louisville & Nashville railroads, are all operated by those switches and run over those tracks." As it was shown (Shanks v. D., L. & W. R. R., 239 U.S. 558, 36 S.Ct. 188, 60 L.Ed. 436, L.R.A. 1916C, 797; Pedersen v. D., L. & W. R. R., 229 U.S. 146, 33 S.Ct. 648, 57 L.Ed. 1125, Ann.Cas. 1914C, 153; St. L., S. F. & T. Ry. Co. v. Seale, 229 U.S. 156, 33 S.Ct. 651, 57 L.Ed. 1129, Ann.Cas. 1914C, 156) that the deceased and the defendant, at the time of the homicide, were both engaged in interstate commerce, it is held:
1. That the cause of action, if any, arises under the federal Employers' Liability Act (U. S. Comp. St. 1916, §§ 8657-8665), and under the petition as filed "the case pleaded was not proven, and the case proven was not pleaded," and the court properly granted the nonsuit. Toledo, St. L. & W. R. R. Co. v. Slavin, 236 U.S. 454-456, 35 S.Ct. 306, 59 L.Ed. 671; Eng v. Sou. Pac. Co. (D. C.) 210 F. 92; St. L., S. F. & T. Ry. Co. v. Seale, supra.
2. Granting that the proffered amendment was sufficient to change the suit to one under the federal statute, the refusal to allow the amendment was not harmful to the plaintiffs, because, with such amendment allowed and the case proceeding under the federal statute, there would have been no presumption of negligence against the railroad company arising upon proof of injury to the employé; and, as there was no substantive proof that the defendant was guilty of any act of negligence, the nonsuit was proper. L. & N. R. R. Co. v. Kemp, 140 Ga. 657, 79 S.E. 558. See, also, Texas & Pacific Ry. Co. v. Barrett, 166 U.S. 617, 17 S.Ct. 707, 41 L.Ed. 1136; Patton v. Texas & Pacific Ry. Co., 179 U.S. 658, 21 S.Ct. 275, 45 L.Ed. 361; Looney v. Metropolitan Ry. Co., 200 U.S. 480, 26 S.Ct. 303, 50 L.Ed. 564; Stepanovich v. Pittsburgh & Baltimore Coal Co., 218 F. 604, 134 C.C.A. 362.
3. As the court did not err in granting the nonsuit, it necessarily follows that there was no error in failing to reinstate the case.
Judgment affirmed.
On Rehearing.
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