Opinion
36413.
DECIDED NOVEMBER 9, 1956. REHEARING DENIED NOVEMBER 27, 1956.
Railroad employee's action for damages. Before Judge Roddenberry. Ware Superior Court. July 9, 1956.
Gibson Maddox, for plaintiff in error.
Bennett, Pedrick Bennett, Larry E. Pedrick, contra.
1. It is not ordinarily relevant to the issues in a negligence action to show that others than the person charged with violation of a rule promulgated for the safety of the class to which he belongs are likewise negligent. An assignment of error on the exclusion of such evidence which contends that the plaintiff in error was deprived of showing the jury that there had been a universal disregard of the company rule with such knowledge and acquiescence on the part of the employer as would amount to its abrogation is without merit, it not appearing that the court was informed of the purpose of the testimony or that any proper foundation was laid for its admission for this purpose.
2. Under the Federal Employer's Liability Act, contributory negligence goes in mitigation but not in bar of recovery. The negligence of a fellow servant is not a defense and is attributable to the defendant. The question of whether negligence of the plaintiff in violating a rule promulgated for the safety of the class to which he belongs was a primary and efficient cause of accident is for the jury. Where, however, a finding is demanded that the defendant was negligent, and that a part of the injury received by the plaintiff would have been inflicted upon him whether or not he was guilty of an infraction of company rules, a finding in the plaintiff's favor for some amount is demanded by the evidence, and a general verdict for the defendant must be set aside.
DECIDED NOVEMBER 9, 1956 — REHEARING DENIED NOVEMBER 27, 1956.
W. L. Thompson filed an action against his employer, the Atlantic Coast Line Railroad Company, in the Superior Court of Ware County under the provisions of the Federal Employers' Liability Act ( 45 U.S.C.A. § 51), alleging in substance that on May 13, 1953, he was employed as a car repairman for the defendant and was engaged in completing the siding within a boxcar when, due to negligence of other employees using welding torches on the outside of the car, a part of the siding caught fire; that the defendant was negligent in not furnishing him with a ladder to get in and out of the boxcar; that on seeing the fire he accordingly prepared to jump down from the boxcar in order to get a water hose to put out the fire; that on the outer side of the door there was located a permanent scaffold used by other workers; that the defendant or its employees had negligently driven a nail into the top of the scaffold and due to the negligence of the defendant or some of its employees the scaffold was allowed to become worn so that the nail protruded; that as he proceeded to catch hold of the scaffold to lower himself from the boxcar his hand and a ring thereon became hung on the nail and when the weight of his body fell against the finger as he jumped his ring finger was completely torn from his hand. The plaintiff also alleged loss of earnings, pain and suffering, and diminished earning capacity. The defendant answered alleging that the injury was caused solely by the plaintiff's negligence in that he did not use a ladder which was furnished and made available to him, but used the scaffolding for a purpose for which it was not intended, and by his negligence in violating a rule of the company prohibiting the wearing of rings by employees while on duty, and averring that he would not have been injured had he not been wearing a finger ring.
The jury returned a verdict for the defendant. The plaintiff filed his motion for new trial which he later amended by the addition of one special ground, and the denial of this motion is assigned as error.
1. The special ground assigns error on the exclusion of the following evidence: "Q. State whether or not other employees were wearing rings at the time you were injured. A. Yes, sir." It is contended that by this ruling the plaintiff was not permitted to offer evidence to the effect that there was a universal disregard by all employees of the plant of the company rule relating to wearing of rings, known to the employer, and of such magnitude as to constitute a waiver on the part of the employer of its enforcement of the rule amounting to an abrogation thereof. While appropriate evidence if offered would have been admissible to establish such facts (see Seaboard Air-Line Ry. v. Hunt, 10 Ga. App. 273, 73 S.E. 588; Shepard v. Payne, 60 Utah 140, 206 P. 1098 (9)), it does not appear from this assignment of error that the court was informed of the testimony that counsel for the plaintiff wished to elicit, or that the latter made any attempt to lay a foundation for this line of questioning. He seems, indeed, to have acquiesced in the court's ruling, for at another point in the cross-examination of one of the defendant's witnesses he queried the trial judge as follows: "Would the court like for me to waive further cross-examination about other employees wearing rings at this time?" and, on receiving an affirmative answer, again without stating the purpose of such line of questioning, he abandoned the subject. The special ground is accordingly without merit.
2. The gist of an action under the Federal Employers' Liability Act is negligence on the part of the railroad company which is in whole or in part the proximate cause of the injuries complained of. Atlantic Coast Line R. Co. v. Stinson, 88 So.2d 189. Under the act the defenses of the fellow-servant rule, assumption of risk and contributory negligence are abolished. Contributory negligence, to bar recovery, must be the sole proximate cause of the injuries. 45 U.S.C.A. § 53. McGivern v. No. Pac. Ry. Co., 132 Fed. 2d 213; Chesapeake Ohio Ry. Co. v. Thomas, 198 Fed. 2d 783. Whether or not violation of a valid and subsisting rule promulgated for the protection of employees by the plaintiff would bar his recovery therefore depends upon whether or not such violation is the primary and efficient cause of the accident and, where it merely concurs with negligence of the railroad which itself is part of the proximate cause, it goes in mitigation but not in bar of recovery. Rocco v. Lehigh Valley Railroad Co., 288 U.S. 275 (2) ( 53 Sup. Ct. 343, 77 L.ed. 743); Barton v. So. Ry. Co., 171 S.C. 46 ( 171 S.E. 5); Brock v. Mobile O. R. Co., 330 Mo. 918 ( 51 S.W.2d 100); Hampton v. Wabash R. Co., 356 Mo. 999 ( 204 S.W.2d 708); 35 Am. Jur. 829, § 407.
The evidence here is undisputed that the plaintiff wore his ring in violation of a company rule, of the existence of which he had heard, but which he thought had been abrogated because it was for some unexplained reason, probably accidental, removed from the company bulletin board. It is undisputed that at the time he jumped from the boxcar there was an emergency created by a fire, not serious in nature, but which needed immediate attention. The plaintiff's direct testimony that there was no ladder available is disputed only by the circumstance that a short while later a ladder was found in the other end of the boxcar. It is further undisputed that there was a nail projecting from the scaffolding, that it should not have been there, and that its existence there was due to the negligence of fellow servants of the plaintiff. The plaintiff testified positively that the nail caught in his hand and ripped the hand and finger up to the point where it caught in his wedding ring, and then hung in the ring and tore off the finger.
Whether the plaintiff's violation of the safety rule was the primary and efficient cause of the loss of his finger or whether it concurred with other negligence on the part of the defendant's employees in causing such loss, is a jury question. However, the evidence demands a finding that the plaintiff was injured to some extent by the nail before the nail ever hung upon the wedding band, and that this part of the injury at least was caused by negligence attributable to the defendant, that is, negligence of a fellow servant. Therefore, the evidence demanded a finding for the plaintiff for some amount, to be ascertained by the jury trying the case. This being so, the general verdict for the defendant is without evidence to support it.
The trial court erred in denying the motion for a new trial.
Judgment reversed. Gardner, P. J., and Carlisle, J., concur.