Opinion
35536.
DECIDED JUNE 20, 1955. REHEARING DENIED JULY 14, 1955.
Action for damages. Before Judge Hendrix. Fulton Superior Court. November 9, 1954.
John H. Hudson, Wm. R. Hudson, for plaintiff in error.
Edgar A. Neely, Marshall, Greene Neely, contra.
1. The first count of the petition fails to show a violation of the Safety Appliance Act or of the Boiler Inspection Act by the defendant railroad; therefore the court did not err in sustaining a general demurrer to that count.
2. Count two of the petition is based on the Federal Employers' Liability Act, and under a liberal construction in favor of the pleader, this count alleges a cause of action against the defendant for negligence; therefore the court erred in sustaining a general demurrer to the second count and in dismissing the entire action.
DECIDED JUNE 20, 1955 — REHEARING DENIED JULY 14, 1955.
Mrs. Mamie V. Wood, as executrix of the estate of Parks A. Wood, deceased, sued Southern Railway Company for the death of the deceased. The petition is in two counts. Count one alleges in substance: that on January 2, 1954, the deceased was in the employ of the defendant as a pipe-fitter's helper in the defendant's shops in Atlanta, Georgia; that his duties required that he assist the pipe-fitter, G. P. Holton, in keeping the defendant's locomotives in proper condition; that on said date the deceased and other employees of the defendant were engaged in repairing or replacing a part, to wit, the damper control, of a defective steam generator on Diesel locomotive No. 2927, one of the defendant's engines assigned to pull train No. 38, known as "The Crescent Limited," over its line from Atlanta to Washington, D.C.; that, as the work was not completed before the locomotive left the shop of the defendant, the said employees, including the deceased, were instructed to go with the locomotive to the Terminal Station to make the repairs en route; that the repairs were not completed before time for "The Crescent Limited" to leave the Terminal Station, and the deceased and the other employees continued to work and completed the same between the Terminal Station and the Brookwood Station in Atlanta; that at all times mentioned the deceased and the other employees were engaged in the repair of the damper control; that the damper control was removed and another damper control put in place, but it was discovered that the replacement would not work satisfactorily and the original damper control was again put on the steam generator; that said locomotive was coupled to cars carrying passengers, express, and United States Mail, and was actually in use and being run on the defendant's lines en route to its destination at all times mentioned; that when the repairs were completed, the deceased attempted to dismount from the moving train as it arrived at the Brookwood Station to return to the defendant's shops and resume his work, and, while in the act of so doing, his clothing became entangled with some part of the locomotive unknown to the plaintiff, and he was jerked under one of the Diesel units and the cars of the train and was fatally injured; that it was the absolute duty of the defendant, under the Safety Appliance Act and the Boiler Inspection Act, not to use or permit to be used on its line any locomotive unless the locomotive and all parts and appurtenances thereof were in proper condition and safe to operate in the service to which the same were being put without unnecessary peril to life and limb of persons coming within the protection of the act; and the defendant's act in so doing was an unlawful act and the proximate cause of the death of the deceased; that the deceased, being the defendant's employee, was within the class of persons entitled to the benefit of the act; that at all times mentioned the deceased and the defendant were engaged in interstate commerce or the furtherance of interstate commerce, and the Diesel locomotive on which the deceased was working at the time of his death was an instrumentality used in interstate commerce or the furtherance of interstate commerce.
The second count alleges substantially the same facts as does the first count, except that count two is not based on the violation of the Safety Appliance Act and the Boiler Inspection Act, but on the defendant's negligence. Count two further alleges: "Train No. 38 was to make a stop at Brookwood Station, but deceased was not so informed and assumed that he would have to dismount while the train was still in motion. Petitioner alleges that the injuries and death of deceased were directly and proximately caused, in whole or in part, by the negligence of defendant as hereinbefore and hereinafter set forth. Defendant was negligent: (a) In keeping in service a locomotive defective as aforesaid; (b) In requiring deceased, a shop employee, to make repairs on said engine while it was in service, and thereby subjecting him to unfamiliar hazards; (c) In placing objects or protrusions unknown to petitioner so near the door and ladder of said locomotive that deceased's clothing would become entangled therewith while in the process of dismounting; (d) In not bringing said engine to a stop to allow deceased to dismount in safety; (e) In failing to warn deceased of the dangers of attempting to dismount from said engine; (f) In failing to furnish deceased with a reasonably safe place in which to work; (g) In not advising deceased that said train was to be stopped at Brookwood Station; (h) In allowing deceased to dismount from said moving train when it was well known to defendant's agents and servants that the train was to be stopped."
To the petition the defendant demurred on general and special grounds. The trial court sustained the defendant's general grounds of demurrer, and dismissed the action, to which judgment the plaintiff excepts.
1. The first count is based on an alleged violation of the Safety Appliance Act and the Boiler Inspection Act. 45 U.S.C.A., § 1 et seq. The allegations of count one do not show that a violation of either act was the proximate cause of the employee's death or that a violation of either or both of said acts in any way contributed to his death. Whatever repairs the deceased was endeavoring to make had been completed at the time of the death. That the necessity to repair the defects was the occasion for other circumstances contributing to the death would not give a cause of action for a violation of said acts. The court did not err in sustaining the general demurrer to count one of the petition.
2. The court erred in sustaining the general demurrer to count two of the petition and in dismissing the entire action. The second count is based on the Federal Employers' Liability Act. Actions under the Federal Employers' Liability Act brought in State courts are controlled by Federal law. Southern Ry. Co. v. Turner, 88 Ga. App. 49 ( 76 S.E.2d 96). The basis of liability under the act is negligence in whole or in part. Ellis v. Union Pac. R. Co., 329 U.S. 649 ( 67 Sup. Ct. 598, 91 L. ed. 572). Petitions in such cases as this must be in accord with the United States Supreme Court rulings, which means a liberal construction in favor of the pleader. Brown v. Western Ry. of Ala., 338 U.S. 294 ( 70 Sup. Ct. 105, 94 L. ed. 100). Under such a construction specification (c) of the specifications of negligence alleges negligence on the part of the defendant. Specification (h) also alleges negligence in that in such specification it is implicit that the employees of the defendant knew that the deceased intended to dismount from the train.
The court did not err in sustaining the general demurrer to the first count of the petition.
The court erred in sustaining the general demurrer to the second count and in dismissing the entire action.
Judgment affirmed in part and reversed in part. Gardner, P. J., Townsend and Carlisle, JJ., concur. Quillian and Nichols, JJ., concur in the judgment as to count one and dissent from the judgment as to count two.
I dissent from the ruling in the second division of the majority opinion and the corresponding headnote, and from the judgment of reversal, for the following reasons: The majority opinion is that the allegations of negligence set forth in specification "c" and "h" were sufficient to withstand a general demurrer. Specification "c" alleges that the defendant was negligent "in placing objects or protrusions unknown to petitioner so near the door and ladder of said locomotive that deceased's clothing would become entangled therewith while in the process of dismounting." The locomotive is not alleged to have been anything other than a standard locomotive of the kind in use for a number of years on the lines of the defendant and of numerous other railroads in the United States, and count two contains no allegation that the objects or protrusions were not a part of the standard equipment or that their presence was not known to the deceased. Specification "h" alleges that the defendant was negligent "in allowing deceased to dismount from said moving train when it was well known to defendant's agents and servants that the train was to be stopped." There was nothing in count two to indicate that any of the defendant's agents or servants, other than the deceased, knew that the deceased was going to attempt to dismount from the moving train, and therefore there could be no negligence chargeable to the defendant by reason of the failure of its agents and servants to prevent the deceased from dismounting from the moving train. Apparently the majority opinion, with respect to specification "h", is based on the theory that the agents and employees of the defendant knew "that the deceased intended to dismount from the train." In my opinion this specification contains no such allegation. It alleges that the railroad was negligent "in allowing deceased to dismount from said moving train." This allegation is a far cry from alleging that the employees knew that the deceased would dismount from the train. While it is alleged also in specification "h", "that it was well known to defendant's agents and servants that the train was to be stopped," this fact would lend support to the theory that the defendant's agents and servants would not expect the deceased to dismount from the moving train, rather than to wait for it to stop at the Brookwood Station. It is not intimated that there was any necessity for the deceased to jump, and no negligent act on the part of the railroad is shown requiring him to jump or reasonably inducing any idea that jumping was necessary. In my opinion count 2 shown merely an indiscreet and unnecessary act by the deceased in doing something which was the sole proximate cause of his death. Accordingly, it is the writer's opinion that the allegations were insufficient in count 2 to set forth a cause of action for the relief sought. I am authorized to say that Judge Quillian concurs in this dissent.