Opinion
31001, 31002.
DECIDED NOVEMBER 27, 1945. REHEARING DENIED DECEMBER 19, 1945.
Damages; from Grady superior court — Judge Crow. June 18, 1945. (Application to Supreme Court for certiorari.)
Pope Baker, Bennet, Peacock Perry, for plaintiff in error.
Arnold, Gambrell Arnold, Ira Carlisle, contra.
1. There was no error in the rulings complained of in the cross-bill of exceptions.
2. In an action for the death of a locomotive engineer, brought under the Federal employers' liability act, where the deceased ran his train past a meeting point in disobedience of written orders previously handed to him, the failure of the conductor on the deceased's train to remind him by the use of the intercommunication air signal of his duty to stop at such meeting point had no causal relation to the death of the engineer, and allegations in the pleadings relating to such failure so to warn the engineer should have been stricken on demurrer. The rights and obligations of the plaintiff depend upon the Federal act and applicable principles of common law as interpreted by the Federal courts.
3. It is not necessary to pass upon the assignments of error in grounds 5 and 8 of the amended motion, for the reason that the questions there presented will not arise on another trial of the case.
4. If a more specific charge on the question of computation of damages was desired by the defendant, it was incumbent upon it to file a timely written request therefor.
5. No reversible error appears in the refusal of the court to charge as requested by the defendant in its requests marked A, B, C, D, E, and F.
6. No reversible error is shown in either of the remaining special grounds, numbered 4, 6, 7, 9, 13, and 14.
DECIDED NOVEMBER 27, 1945. REHEARING DENIED DECEMBER 19, 1945.
Mrs. Eula K. Anderson, the wife of George T. Anderson, as the executrix of his will, sued under the Federal employers' liability act for his death while employed as a locomotive engineer by the defendant, Atlantic Coast Line Railroad Company. She alleged: (4) that her husband was engaged in his duties as engineer of the defendant on the engine of a passenger train designated as No. 12, which was approaching the Town of Whigham, Georgia, from the west at about six o'clock on the morning of July 1, 1942; (5) that another of the defendant's trains, the third section of No. 57, was approaching Whigham from the east on the same track, and that the crews of both trains were engaged in interstate commerce; (7) that both trains were first-class trains, but No. 12, being an eastbound train, had the right of way, under the rules of the company, over other trains meeting it and using the same track; (9) that the crew of train No. 12 had been given meet orders from station to station along the line, which meet orders had been from time to time cancelled and other meet orders given, requiring a meeting with various sections of train No. 57 at different stations from those named in the original orders, but the second order to the crew respecting the meeting of the third section of train No. 57 required that they meet at Whigham, a similar meet order having been given to the crew of train No. 57; (10) that train No. 12, having the right of way over No. 57, was to remain on the main line while the other train took the siding at Whigham, but it was the duty of its crew to reduce its speed on approaching Whigham, and to go through the town without stopping, if No. 57 was in the siding when it arrived there, and in the event it reached Whigham first, train No. 12 was to stop and wait until No. 57 had taken the siding before proceeding; (11) that the engineer of No. 12, the deceased, was required to blow a meet order signal at least one mile from the meeting point, and if he failed to do so, it was the duty of the conductor, under a rule of the company, to take immediate steps to stop the train, it being within his power to do so by putting on the air brakes; (12) that "the engineer of train No. 12, through unintentional oversight, failed to give the meeting signal, and the conductor, though he could have stopped the train by the use of the air brakes before it reached the east switch point of said switch, if he had applied the brakes immediately upon arriving within a distance of a mile from said switch, failed to apply the brakes until he was either passing the switch or was so near the switch as to permit the locomotive to run to a point approximately 996 feet east of the eastsiding switch before coming to a stop. The engineer, when the train stopped, realizing the emergency from the expected approach of the third section of train No. 57, immediately began to try to release the brakes, which were on in emergency application, and to try to back the standing train from the point of danger, and at the same time his fireman jumped from the engine and began to prepare to put out warning flares to warn the engineer of the other train of the danger. Before the fireman could get the flares placed and before the engineer could start the train backward, a period of about forty seconds had elapsed and the third section of train No. 57, traveling at a speed of about 50 miles an hour and with a clear view in front of it for more than 1200 feet, approached and ran head-on into train No. 12, killing the plaintiff's husband, George T. Anderson, and wrecking the engine and several cars of each train."
It was also alleged that the deceased was compelled to act in an emergency, and to choose whether to jump from the engine and leave the passengers and crew to the danger of death and destruction, or to stay with the train and attempt to back it from the point of danger; and that the deceased chose the latter course, and his death occurred while he was trying to relieve the emergency and save lives and avoid injury to persons and serious damage to the defendant's property.
The negligence alleged against the railroad in the original petition was: its failure to maintain an automatic block-signal system, and in operating over a single track many trains daily without the use of such system; in the failure of the conductor on train No. 12 to stop the train immediately when the engineer failed to blow the meet order signal; in operating train No. 12 more than two hours late, and train No. 57 approximately five hours late over an excessively used single-track railroad; in requiring said trains to meet at Whigham, a country station very little used, where trains seldom met; in operating train No. 57 at an excessive rate of speed, and in the failure of its engineer to stop his train or slow it down sufficiently to avoid the collision; and in the failure of its engineer to keep a proper lookout ahead before reaching the point of the collision, and to have his train under proper control so as to avoid the collision.
The plaintiff filed two amendments to her original petition. In the first amendment, she amplified the allegations of negligence with respect to the failure of the conductor on train No. 12 to stop the train, alleging that he was negligent in failing to put on the emergency brakes and in failing to remind the engineer of the meeting point through the intercommunications signal system on the train. The plaintiff also amplified in this amendment the alleged negligence of the engineer on train No. 57 in approaching the meeting point at an excessive rate of speed, and in not reducing the speed of his train to 10 or 15 miles per hour, and in failing to stop his train in time to avoid the collision. In her second amendment, the plaintiff alleged negligence in that the intercommunication air-signal equipment in use on train No. 12 was defective and out of repair to such an extent that it would fail to give signals properly, and that the conductor was negligent in failing to pull the air-signal whistle cord when a mile from the meeting point; and that, when the conductor did pull the cord, the defective equipment failed to respond and blow a distinct meet-order signal to the engineer as it should and would have done had it been in proper condition and repair.
The defendant demurred generally and specially to the petition as amended. The general demurrer, the special demurrer to the paragraph of the petition alleging that the conductor on train No. 12 was negligent in failing to stop the train more promptly, and the special demurrer to the charge of negligence on the part of the conductor in failing to pull the air-signal whistle cord so as to give the engineer the meet order signal when a mile from the meeting point, were overruled. All of the special demurrers directed to the alleged negligence of the engineer of train No. 57 were likewise overruled. Special demurrers to the allegations charging negligence in the failure of the defendant to use a block system, and in operating a large number of trains daily without the use of such system, and the special demurrers directed to the alleged negligence of the defendant in operating its trains several hours late, and in designating the small Town of Whigham as a meeting point were sustained. Exceptions pendente lite were duly filed by the plaintiff to the rulings sustaining these special demurrers, as stated, and a cross-bill of exceptions assigning error on these rulings is in this court. The defendant complains of the adverse rulings on its demurrers, as stated.
The case proceeded to trial and a verdict was returned in favor of the plaintiff for $25,000. The defendant's motion for new trial, based on the usual general grounds and a number of special grounds set up by amendment, was overruled. The case comes to this court on exceptions to the judgment overruling the defendant's motion for new trial as amended.
1. We have carefully considered the rulings complained of in the cross-bill of exceptions, and find no error therein. We think that the trial court properly sustained the special demurrers to which exception is taken by the plaintiff in the lower court.
2. We think that all of the rulings complained of by the defendant on its demurrers were correct with one exception. The demurrer to the allegations charging the conductor of train No. 12 with negligence in failing to pull the air-signal whistle cord, and thus warn the engineer of the meet order, should have been sustained. We base this ruling on what seems to be an overwhelming line of cases from the Supreme Court of the United States and other Federal courts. The rights and obligations of the plaintiff in this case, the same being an action under the Federal employers' liability act, depend upon that act and applicable principles of common law as interpreted by the Federal courts. Central Vermont Ry. Co. v. White, 238 U.S. 507 ( 35 Sup. Ct. 865, 59 L. ed. 1433, Ann. Cas. 1916 B, 252); Chicago, M. St. Paul Ry. Co. v. Coogan, 271 U.S. 472 ( 46 Sup. Ct. 564, 70 L. ed. 1041); Willis v. Pennsylvania R. Co., 122 Fed. 2d, 248. This well-known rule has been recognized by our courts. Georgia R. v. Cubbedge, Hazelhurst Co., 75 Ga. 321; Clews v. Mumford, 78 Ga. 476 ( 3 S.E. 267); Bugg v. Consolidated Grocery Co., 155 Ga. 550 ( 118 S.E. 56); Hansford v. Nat. Bank of Tifton, 10 Ga. App. 270 ( 73 S.E. 405); L. N. R. Co. v. Rudder, 39 Ga. App. 513 ( 147 S.E. 795); Western Union Telegraph Co. v. King, 61 Ga. App. 537 ( 6 S.E.2d 368).
In Davis v. Kennedy, 266 U.S. 147 ( 45 Sup. Ct. 33, 69 L.ed. 212), a recovery was denied to the administratrix of an engineer, who was killed in a collision between his train and another, in an action under the Federal employers' liability act, where it appeared that it was the engineer's personal duty not to move his train forward without positively ascertaining that another train had passed. The Tennessee trial court gave the plaintiff a judgment which was sustained by the Supreme Court of that State, on the ground that the other members of the crew as well as the engineer were bound to look out for the approaching train, and that their negligence contributed as a proximate cause to the engineer's death. In reversing the State court, it was said that it was the personal duty of the engineer to ascertain positively whether the other train had passed, and that his duty was primary, as he had physical control of his train and was managing its course. It was held that it would be a perversion of the statute to allow the engineer's representative to recover for an injury directly due to his failure to act as required, on the ground that possibly the injury might have been prevented if those in secondary relation to the movement had done more. In Frese v. Chicago B. Q. R. Co., 263 U.S. 1 ( 44 Sup. Ct. 1, 68 L. ed. 131), a recovery was denied to the administratrix of the engineer, who had been killed in a collision between his engine and the train of another railroad at a grade crossing, in an action brought under the Federal employers' liability act, where it appeared that it was the personal duty of the engineer to ascertain that his train could safely resume its course. It was contended by the plaintiff that the injuries might have been avoided if the fireman had been more vigilant, and that even if Frese (the engineer) was negligent, this would not be a bar because of the negligence on the part of the fireman. The court held unanimously, in an opinion rendered by Mr. Justice Holmes, that "it would be a perversion of the Federal employers' liability act to hold that he could recover for an injury primarily due to his failure to act as required (by the statute), on the ground that possibly the injury might have been prevented if his subordinate had done more." In Unadilla Valley Ry. Co. v. Caldine, 278 U.S. 139 ( 49 Sup. Ct. 91, 73 L. ed. 224), it appeared that the conductor had disobeyed a rule of the company requiring the train to be held at a certain station to await the passing of another train, but had ordered the motorman to proceed, and was killed in a resulting collision. A judgment for damages in the New York court was reversed by the Supreme Court, in a holding that the plaintiff could not be heard to say that the accident was due in part to the negligence of the motorman in obeying the conductor's command; nor could it be attributed in part to the station-master's neglect to warn the conductor. The court held that Caldine (the conductor), or his administrator, was not entitled as against the railroad company to say that the collision was due to anyone but himself; and he could not hold the company liable for a disaster that followed disobedience of a rule made to prevent it, which disobedience was brought about by his own acts. It was also held that it was even less possible to say that the collision resulted in part from the failure of the station agent to warn the conductor that the other train was coming; and that "a failure to stop a man from doing what he knows that he ought not to do hardly can be called a cause of his act."
Following the Caldine case, it was held that where a conductor, with a definite written order to enter a certain passing track and there to wait the passing of a train from the opposite direction on the main line, in disobedience of such order went beyond the meeting point and thus brought about a head-on collision in which he was killed, his negligence was the proximate cause of his death. The fact that a duplicate of the same order and an oral confirmation of it were not delivered to him, when he arrived at the meeting point, through the oversight of other employees, did not render the railroad liable. Southern Ry. Co. v. Youngblood, 286 U.S. 313 ( 52 Sup. Ct. 518, 76 L. ed. 1124). In the companion case of Southern Ry. Co. v. Dantzler, 286 U.S. 318 ( 52 Sup. Ct. 520, 76 L. ed. 1124), the engineer was killed on the same train, and his administratrix was denied damages on alleged negligence practically the same as in the Youngblood case. In Great Northern Ry. Co. v. Wiles, 240 U.S. 444 ( 36 Sup. Ct. 406, 60 L. ed. 732), the employee was a rear brakeman on a freight train, and was killed in his caboose when it was run into by a passenger train from the rear after his train had broken in two and stopped instantly because of a drawbar pulling out. It was the employee's duty to have gone back to protect the rear end of his train, and it was held that his failure to perform this duty was negligence proximately causing the accident, so as to bar a recovery by his administrator. It was held also that there was no justification for a comparison of negligence on the part of the employer and the employee, or the apportioning of their effect under the employers' liability act.
In Bradley v. Northwestern Pacific R. Co., 44 Fed. 2d, 683 (72 A.L.R. 1341), in an action under the Federal employers' liability act, the Circuit Court of Appeals held that recovery could not be had under the comparative-negligence rule, by the administratrix of the decedent's estate, where the decedent (an engineer employed by the defendant railroad company) failed to obey an order to meet and pass an extra freight train at a certain point, and was instantly killed in a head-on collision of his train with the freight train. It appeared that the conductor, the head brakeman, and the fireman all forgot to observe and carry out the rules of the company promulgated as a precaution against collisions, rules generally similar to those of the defendant company introduced in evidence in the instant case. It was contended in the Bradley case that the conduct of the conductor in failing to warn the engineer by the use of the air whistle, and the conduct of the brakeman in not calling the conductor's attention to the failure of the engineer to stop at the passing point, and the failure of the fireman likewise to remind the engineer of the meet order, all of which was required by the rules of the railroad, was negligence contributing to the cause of the accident for which the company was responsible. These contentions were rejected. Unadilla Valley R. Co. v. Dibble, 31 Fed. 2d, 239, in which the Supreme Court denied certiorari ( 280 U.S. 565, 50 Sup. Ct. 25, 74 L. ed. 618), is cited. In that case it was held that a motorman was not entitled to recover for injuries received by him in a collision which resulted from a violation of orders received by him, although he was given a signal by the conductor to start his train and did move forward in accordance with this signal, thus coming in collision with the freight train covered by the meet order. Yadkin R. Co. v. Sigmon, 267 U.S. 577 ( 45 Sup. Ct. 230, 69 L. ed. 796), is also cited. In that case in which the decedent (an engineer) was killed in a collision caused by operating his train in violation of train orders, it appeared that both the flagman and the conductor forgot the order, and did not signal the engineer. Instead of thus reminding the engineer of his obligation, the flagman pulled the signal cord giving the engineer the signal to go ahead, and the conductor, although apparently observing him do so, did not interfere. The Supreme Court of North Carolina held that their negligence was a contributory cause of the death of the engineer, and that the jury was therefore empowered, under the Federal employers' liability act, to apportion the recovery according to the ratio which they found should exist between the causal effect of the contributory negligence of the engineer and that of the defendant railroad company in the conduct of its conductor and flagman. The Supreme Court reversed the North Carolina Court upon the authority of Davis v. Kennedy and Frese v. Chicago B. Q. R. Co., supra.
In the Dibble case and in the Yadkin case, cited in the Bradley case, there were affirmative acts, in disobedience of the rules of the railroads involved, by members of the crew other than the person injured or killed, alleged as negligence, whereas in the case at bar only passive or inactive negligence, a failure to act, is charged against the conductor of the train on which the decedent was the engineer. In that respect the instant case is stronger on its facts, against the contentions of the plaintiff, than are the cases cited. The conductor is charged with negligence in not taking steps to stop the train when he realized that the engineer had failed to give the signal indicating a meeting or waiting point, and in failing to put on the emergency brakes to stop the train, and in failing to warn the engineer over the signal system that a meeting point was about to be reached. We think that the alleged negligence of the conductor in failing to take immediate action to stop the train as required by a rule of the company, and his failure to apply the emergency brakes, if necessary, in stopping the train, was properly pleadable against the company, although most of the decisions cited above seem to hold otherwise. We base this ruling on the allegations in the petition that the conductor was in charge of the train, and that it was within his power to stop the train at any time by putting on the air brakes, irrespective of any act or omission on the part of the engineer. However, under the rulings in the Caldine, Youngblood, Dantzler, and Bradley cases, supra, we are compelled to hold that the failure of the conductor to try, by using the signal system, to stop the engineer from doing what he knew he ought not to do, cannot properly be called a cause of the engineer's act. We think that there is a difference between the positive duty enjoined upon the conductor to take action to stop the train, using the emergency brakes if necessary for this purpose, and whatever duty may have rested upon him to communicate with the engineer over the signal system. Stopping the train by applying the brakes was within the power of the conductor without regard to the engineer, whereas the failure to warn the engineer could have had no reasonable causal connection with the collision. There being no causal connection between the alleged failure of the conductor to use the signal system at the proper time and the death of the decedent, the demurrers on this point should have been sustained.
3. Grounds 5 and 8 of the amended motion complain of excerpts from the charge relating to the intercommunications signal system, and to the provisions of the Federal safety appliance act. It is not necessary for this court to pass upon these assignments of error, for the reason that they will not arise on another trial of the case. Under our ruling in division 2, the alleged failure of the conductor to warn the engineer over the signal system was not a proper ground of negligence. If the failure of the conductor to use the signal system had no causal relation to the collision and the death of the decedent, the alleged defective condition of the system could have had none. "In an action against a railroad company for injury to one of its employees based on the defendant's violation of a Federal statute (the safety appliance act), in order to render the company liable, there must necessarily be, as in other cases, a causal connection between such violation and the injury." Powell v. Waters, 55 Ga. App. 307 ( 190 S.E. 615).
4. Grounds 10 and 11 complain of charges as follows: "In considering the question of damages, the court charges you that the law provides for a recovery by those only who are deprived of pecuniary benefits which the alleged beneficiary might reasonably have received if the decedent had not been killed. The measure of damages in such a case as this is the financial benefit which reasonably might have been expected from the decedent to the plaintiff if the decedent had not been killed." The criticism is that these charges did not confine the jury to contributions which the deceased would have made to his wife during his lifetime, nor to the present cash value of such contributions, and that the use of the term "financial benefit" was confusing to the jury. The charge as a whole shows that the court did, in immediate connection with the paragraph complained of, limit the contributions in money or services, inuring to the benefit of the wife, to the term of her husband's expectancy, and did instruct the jury to reduce the amount of the pecuniary benefits to its present cash value by any proper mathematical calculation. If more detailed instructions respecting the measure of damages were desired, it was incumbent upon the defendant to make a request therefor. W. A. R. v. Hughes, 278 U.S. 496 ( 49 Sup. Ct. 231, 73 L. ed. 473). We find no error in these grounds.
5. Ground 12 complains of the refusal of the court to give in charge to the jury certain requests duly made by the defendant, designated as A, B, C, D, E, and F. We think that the principles embodied in requests A, B, and C were sufficiently covered by the general charge; and it is unnecessary to pass on D and E because they relate to the alleged negligence of the conductor in the use of the signal system, and all questions concerning it have been eliminated and cannot arise on another trial. The request designated as F was inapplicable to the contentions in the case, and its refusal was not error.
6. Special ground 4 alleges error in the charge on the contentions of the parties that it was the duty of the conductor on train No. 12 to "stop that train immediately," upon the failure of the engineer to blow the proper meet-order signal, since the rule of the company makes it the duty of the conductor "to take immediate action to stop the train" under the circumstances stated. The charge of the court might be said to have been inapt, but we do not think that the error, if any, was sufficient to justify a reversal of the case.
Grounds 6 and 7 complain of excerpts from the charge, respecting the alleged negligence of the engineer on train No. 57 in operating that train at an excessive rate of speed, and in not keeping a proper lookout ahead, and in failing to reduce speed as he approached the meeting point. We do not think that these charges were error for any reason assigned.
Ground 9 complains of an excerpt from the charge, but shows no error. Ground 13 makes the contention that the verdict is excessive. We do not think it necessary or proper to pass on that assignment, as the case will be tried again. Ground 14 complains of the failure of the court to direct a verdict for the defendant. It is sufficient to say without elaboration that we find no error in this ground.
Judgment reversed on the main bill of exceptions, and affirmed on the cross-bill. Sutton, P. J., and Felton, J., concur.