Central of Georgia Railway Co. v. Allen

Atkinson, J. By statute in this State, before the adoption of the act approved August 16, 1909 (Acts 1909, p-. 160, Civil Code, §§ 2782 et seq.)-, common carriers by railroad were liable for injuries to their employees resulting from negligence attributable to the employer where the injured employee was without fault. This law was amended by the act above mentioned, and since the amendment it is no longer essential that the injured employee must have been without fault, but he may recover provided the injury was not brought about “by his own carelessness, amounting to a failure to exercise ordinary care,” or if he could not have avoided the consequences of defendant’s negligence “by the exercise of ordinary care.” But in cases where the negligence of the employee in some degree, less'than indicated above, contributed to the injury, he may recover diminished damages. In the Civil Code, § 3131, it is also provided that “A servant assumes the ordinary risks of his employment, and is bound to exercise his own skill and diligence to protect himself.” Where there is no express contract on the subject, whatever risk the employee of a railroad company assumes can be no more than the “ordinary risk” of the particular business in which he is employed. It will not extend to an unusual danger which, in the ordinary course of the business as conducted, would not naturally occur. In Georgia R. &c. Co. v. Rhodes, 56 Ga. 645, which was a suit for damages on account of an injury to a baggage-master on a train, it was held: “Such an employee assumes the risks necessarily incident to his occupation, but not such as result from the negligence of his coemployees.” The negligence of the coemployees had reference to the operation of two trains which resulted in their collision, causing plaintiff’s injury. In Lawhorn v. [336] Millen & Southern R. Co., 97 Ga. 742 (25 S. E. 492), it was ruled: “Even if a train employee, who by reason of his having full knowledge that the track of a railroad was in a dangerously defective condition and had so remained for a considerable period, can be held to have thereby assumed all risk of injury necessarily incident to riding, while engaged in his work, upon a train when being run in the usual manner and at the usual rate of speed, yet where upon a given occasion he was injured by a derailment of a car upon which he was riding in the due course of his employment, and, on the trial of an action against the railroad company for the injury thus sustained, proved affirmatively that the train at the time of the injury was being run at a dangerous rate of speed around a sharp curve, it was at least incumbent on the defendant to show that such rate of speed at the point in question did not exceed that at which the train had usually been run at this place.” In that case a judgment granting a nonsuit was reversed. While that was not the case of a watchman at a crossing, nevertheless the ruling is an application of the law relative to the assumption of risks by railroad employees, and furnishes an example illustrative of unusual risks which are not assumed. In the later case of A., K. & N. R. Co. v. Tilson, 131 Ga. 395 (62 S. E. 281), a judgment refusing a nonsuit was sustained. Mr. Justice Lumpkin, in the course of the opinion, used the following language: “While an employee assumes the ordinary risks of a dangerous occupation, it could hardly be said that carelessness on the part of the engineer in the operation of his engine, or on the part of the company in regard to its track, of which he had no notice, was one of the usual and ordinary risks assumed by a 'freight hand’ in the discharge of his duty, so as to present a legal bar to a recovery by him, under our statute allowing a recovery by an employee of a railroad who is not at fault, and who is injured by negligence of other employees.” In the present case the plaintiff’s duty as watchman was to remain at the crossing, where there were a number of railroad tracks over a street in a city at a grade level, to prevent injury to persons and things by defendant’s trains. There appeared to him imminent danger of a catastrophe, described in the statement of facts, which he was attempting to prevent, when a switch-engine moving backward on a different track, without rear lights, or giving warning, and running at 35 or 40 miles an hour over the crossing, struck him [337] before its presence was discovered. While it was his duty to watch for trains on all the tracks, there was no evidence that this manner of operating switch-engines at that place was usual, or even that it had ever occurred before. In running in the manner described the switch-engine was running in violation of a statute in regard to giving signals at street crossings (Civil Code, § 2677), and was dangerous. Under all the circumstances the judge did not err in refusing to take the case from the jury on the question of assumption of risks by the plaintiff, or negligence of the defendant. Judgment affirmed. All the Justices concur.