Hicks v. Louisville & Nashville Railroad

Bell, Justice. F. C. Hicks, a former employee of the Louisville & Nashville Eailroad Company, recovered a verdict against the company for $9000. The action was brought under the Federal employer’s liability act. Defendant pleaded the defense of assumed risk, and in its motion for new trial contended that the evidence established this defense as a 'matter of law. The trial court refused to grant a new trial, and the defendant excepted. The Court of Appeals reversed the judgment solely upon the ground that the evidence failed to support the verdict. The case is now before this court on the grant of a certiorari. The defendant in certiorari insists that the case as presented to this court involves no question of gravity and importance, and should be dismissed upon the ground that the writ of certiorari was improvidently granted. After a careful examination of the record, we agree with this contention. The Court of Appeals summarized the case as follows: “The evidence for the plaintiff showed that he had been in the employ of the defendant company for nearly twenty years, and that he, at the time he was injured, was employed as a fireman operating a train between Marietta, Georgia, and Ellijay; that while in the act of firing the engine on this particular trip, plaintiff observed that the coal feed stopped, and he took his coal-pick and dug into the coal and found a large lump. He attempted to burst the lump by striking it with a coal-pick, and in striking it a small particle flaked from the same and struck him in the left eye and caused the loss of his eyesight. It was pleaded and admitted that the following rule was in effect at the time: ‘Coal will be broken to the proper size for firing and will be kept within reach of the — 596 — fireman, it being the intent that the coal be handled but once with the shovel.’ The plaintiff testified that he was accustomed to the handling of coal and he knew the difference between striking coal and slate with a coal-pick, and that he had known for many years that slate would fly from slatey coal upon being struck; that particles would also fly from coal upon being struck; and that he knew these facts by observation and experience as a fireman for seventeen years. He saw the lump or substance before he struck it, but did not wear any goggles over his eyes to protect them; that he had never used any precaution to protect his eyes. lie also knew that under the rule agreement he could not have been compelled to handle the lump which he attempted to break up. Evidence for the plaintiff also showed th,at the lump broken would show ‘at a glance’ that it contained more slate than coal. Hpon conclusion of the plaintiff’s testimony, the court refused to direct a verdict, and submitted the issues to a jury, which returned a verdict for the plaintiff.” Louisville & Nashville R. Co. v. Hicks, 49 Ga. App. 846 (176 S. E. 698). In its decision the Court of Appeals said: “It cannot be doubted, under the evidence in this case, that the plaintiff was fully aware of the fact that coal at times contains slate, and that lumps of coal or slate, when struck by a pick, would probably burst and cause particles or fragments thereof to scatter in all directions. It is also in evidence that he took no precaution to avoid injury because of such fragments, and that he did not wear any goggles at any time to protect his eyes. The evidence discloses that he fully knew and understood that such was and would be the natural and probable result of striking a lump of coal or slate with a pick. It is fairly inferable that such an occurrence •was a frequent happening. Nevertheless this plaintiff in line of his duty, and even though the railroad company did not furnish to him coal that might be handled at all times with a shovel,' acted in the face of an obvious danger with full knowledge of its consequences; and for this reason the evidence failed to support the verdict, and it was error for the court to overrule the motion for new trial.” The petition alleged that this “ruling and decision” was erroneous, for the following reasons: “(a) That portion, to wit, ‘It is fairly inferable that such an occurrence was a frequent happening’ is erroneous and is assigned as error, for the reason — 597 — that it is not warranted by the evidence in the case. If such ruling has reference to the occurrence which happened in this case, that is, breaking with a pick a lump of slate on the engine, there is no evidence that any such occurrence had ever happened before. The court seems to have the misconceived idea that the evidence discloses that lumps of slate in the coal on the tender was a frequent happening, and that therefore this was an obvious danger or one which the fireman should have anticipated in the exercise of ordinary care. There is no evidence to warrant any such inference or conclusion; and petitioner says that the court erred in so ruling and holding, and petitioner assigns error thereon, (b) That portion, to wit, ‘It cannot be doubted, under the evidence in this ease, . . that coal at times contains slate/ is erroneous and is assigned as error, for the reason that it is not warranted by the evidence. If the court has reference to coal on the tender of the engine, there is no evidence to warrant any such conclusion. The coal used was fine coal. It is used by railroads and is what is called steam coal, and is used doubtless because it can be handled more easily, and also possibly because it is cheaper. The court, we take it, refers to lumps of slate being at times in the coal on the tender, because that would be the only thing which would be pertinent to this case. There is no evidence to justify any such statement or conclusion. This court may search the record and no such evidence will be found. Certainly there is no evidence that plaintiff was ‘fully aware’ of any such pre-existing condition; and petitioner says that the court erred in so ruling and holding, and assigns error thereon, (c) That portion, to wit, ‘It cannot be doubted, under the evidence in this case, that plaintiff was fully aware of the fact . . that lumps of coal or slate, when struck by a pick, would probably burst and cause particles or fragments thereof to scatter in all directions/ is erroneous and is assigned as error, because it is not warranted by the evidence, and for the further reason that the court does not take into account the increased hazard from breaking a lump of slate over that of coal. The court apparently puts the hazard of breaking a lump of slate in the same category with breaking a lump of coal. The court fails to take into account the increased hazard from breaking a lump of slate. Assuming that some small particles of dust will fly when a lump of coal is broken, and that Hicks assumed that — 598 — small danger, whatever it was, when he broke what he thought was a lump of coal, it cannot be legally held that he also assumed the greater and increased hazard from breaking a lump of slate when such danger was not obvious to him. The said ruling is further erroneous in that the court assumes that particles or fragments fly equally in all directions from coal or slate, without any distinction between the two; the court by its ruling holds one as dangerous as the other. The evidence does not justify any such conclusion. The evidence is otherwise and shows that only dust or at times very small particles fly from coal, but that slate sends off sharp and cutting flakes, sharp enough to penetrate an eyeball like glass, and is more dangerous to break than coal; and petitioner says that the court erred in so ruling and holding, '(d) That portion, to wit, ‘The evidence discloses that he fully knew and understood that such was and would be the natural and probable result of striking a lump of coal or slate with a pick/ is erroneous and is assigned as error, because not warranted by the evidence. This is a ruling that Hicks knew and understood that coal as well as slate would send off dangerous particles or fragments in all directions. There is no evidence to warrant the statement. Furthermore, assuming that slate will send off sharp flakes such as will penetrate an eyeball and make it more dangerous to strike it, there is no evidence to show that Hicks knew that this was slate, and there is no evidence that lumps of slate appeared on the tender with such frequency as to put him on notice that this was and probably might be a lump of slate, and therefore was an obvious danger which he assumed. Adams testified that it was an unusual lump in one of the tenders. And petitioner says that the court erred in so ruling and holding, (e) That portion, to wit, ‘Nevertheless this plaintiff in line of his duty, and even though the railroad company did not furnish to him coal that might be handled at all times with a shovel, acted in the face of an obvious danger with full knowledge of its consequences/ is erroneous and is assigned as error, because it is not warranted by the evidence. There is no evidence that Hicks knew that it was a lump of slate or that he could have known in the exercise of ordinary care, or that he had reason to think so. And it would have to be shown that he knew it was slate, or that it was so obvious that an ordinarily prudent person would have observed and appreciated it. — 599 — And petitioner says that the court erred in so ruling and holding, (f) That portion, to wit, ‘and for this reason the evidence failed to support the verdict, and it was error for the court to overrule the motion for new trial/ is erroneous and is assigned as error, because not warranted by the evidence, and because, petitioner alleges, that there was ample evidence to support the verdict. That the question of assumption of risk under the evidence was a question to be determined by the jury, and that there was ample evidence to authorize the jury to find that the plaintiff did not assume the risk, and the Court of Appeals erred in holding as a matter of law that the evidence failed to support a verdict in the case. The danger was not obvious to Hicks, and it was not a risk he assumed. It was negligence to leave a lump of slate in the tender, especially rolled down against the gate, the only place where he was to get the coal from, and to cover it up with the fine coal. An employee does not assume a risk due to negligence until he becomes aware of the danger or unless the risk is so obvious that an ordinarily prudent person would have observed and appreciated it. Petitioner alleges that the verdict was amply supported by the evidence, and the Court of Appeals erred in holding as a matter of law that the evidence failed to support the verdict, and erred in holding that it was error for the trial judge to overrule the motion for new trial; and the petitioner says that the court erred in so ruling and holding, (g) That part of the opinion, to wit: ‘Evidence for the plaintiff also showed that the lump broken would show “at a glance” that it contained more slate than coal/ is erroneous and is assigned as error because it is not warranted by the evidence. The court evidently refers to that as proof that Hicks could have told ‘at a glance’ that the lump was slate and therefore was the obvious danger. The phrase ‘at a glance’ is taken from the testimony of Adams, the employee of defendant who handled the lump at Tate, Georgia, in the open, in the daytime, and rolled the lump back against the feed-gate. Adams testified: ‘I can only say positively that I saw the outside, and the outside part of the coal appeared “from a glance” to be more slate than coal.’ If the court means to infer that Hicks could have told ‘at a glance’ that the lump was slate, then it shows that the Court of Appeals never understood the case and had an erroneous conception of the evidence. The evidence is that it was — 600 — dark (Hicks saj^s dusky dark) when the occurrence happened; that the lump'was back behind the gate covered or partly covered with fine coal; that under these circumstances it was impossible for Hicks to know anything about its composition, except that it was a lump as he testified. He opened the firebox .after his eye was hit, and with the bright light from the firebox streaming on it he could then tell it was slate; but this was after he had been hit and took the piece of slate from his eyeball. Petitioner alleges that the court had a misconception of the evidence in citing this testimony of Adams, who handled the lump in the daytime, as proof that Hicks could have told ‘at a glance’ that the lump was slate, for there could not be any other purpose in thus citing this testimony of Adams; and petitioner says that the court erred in so ruling and holding, (h) That portion, to wit, ‘It is also in evidence that he took no precaution to avoid injury because of such fragments, and that he did not wear any goggles at any time to protect his eyes,’ is erroneous and is assigned as error, because it was the duty of the master to furnish the servant Iiicks a safe place to work and safe instrumentalities for the work, and the evidence is that the defendant company did not furnish him any goggles; and the court erred in holding in effect that he was negligent in not wearing goggles. • The servant has a right to presume that the master has complied with its duty in furnishing him a safe place to work, and' he may act upon this presumption until he discovers the negligent act of the master, to wit, in this instance the leaving in the coal bin a large lump of slate. It was not incumbent upon the servant to take precautions against a negligent act of the master of which he knew nothing and had no reason to anticipate in the exercise of due care. Adams testified it was an unusual lump in the tender, and yet it was rolled down where it blocked the gate and where he knew Hicks would have to break it in order to shovel out the coal. Hence the court erred in holding in effect it to be negligence on the part of I-Iicks in not taking precaution against injury by wearing goggles, (i) Petitioner alleges that the Court of Appeals erred in holding as a matter of law that the evidence failed to support the verdict, and assigns error upon said ruling for the reason that the evidence made a question for the jury; and the jury having found for the plaintiff, and the verdict being amply supported by the evidence, it was error for the — 601 — Court of Appeals to hold as a matter of law that the verdict was unsupported by the evidence in the case. Petitioner alleges that the Court of Appeals had a misconception of the law of this case as applied to the facts, and out of that grows the court’s erroneous ' ruling that the verdict is not supported by the evidence, because the decision makes no distinction between the great and increased hazard or danger from breaking a lump of slate and the slight danger (if any) of breaking a lump of coal. The decision seems to put the hazard from breaking a lump of slate on the same plane as breaking a lump of coal. According to Hicks’ testimony there is practically no danger in breaking a lump of coal, but there is great danger in breaking a lump of slate. Slate is hard, and sharp flakes fly from it like sharp pieces of glass such as will penetrate an eyeball, while small particles of dust might fly from coal but would not be such as would penetrate and destroy an eyeball. Hicks did not assume this increased hazard, not knowing that this was a lump of slate, and having no reason to think so in the exercise of ordinary care; and petitioner says that the court erred in so ruling and holding.’’ It is perfectly clear that these assignments of error do not involve any question of gravity and importance, so as to authorize a decision by this court on the merits. Hnder Rule 45 (formerly rule 2), the petition for certiorari “must specify the decision complained of and the alleged errors.” 'Code, § 24-4549. So far as the petition complies with this rule, it alleges only that the decision and various parts of it were unwarranted by the evidence. No ruling or decision by the Court of Appeals on any proposition of law is complained of; but the only question presented to this court is whether the verdict in favor of the plaintiff was supported by the evidence as against the defense of assumed risk. On principle, this case is identical with Louisville & Nashville Railroad Co. v. Tomlin, 161 Ga. 749 (132 S. E. 90), where this court, after granting a certiorari and after argument, dismissed the writ as having been improvidently granted. That case was also brought under the Federal employer’s liability act, and involved assumed risk as the principal defense. A comparison of the assignments of error there presented will show that they were not less important from the standpoint of public interest than the assignments in the case now before us. The opinion in that case quoted from a number of — 602 — decisions by this court, to the effect that a certiorari will not be entertained except in cases of public gravity and importance; and that the question merely whether a verdict is supported by the evidence, where only an issue of fact is involved, does not authorize a review by this court on certiorari. The following decisions by this court, together with several decisions by the United States Supreme Court, were cited: Central of Ga. Ry. Co. v. Yesbik, 146 Ga. 620 (91 S. E. 873); King v. State, 155 Ga. 707 (118 S. E. 368); Parks v. Hardwick, 158 Ga. 71 (2) (122 S. E. 553); Jones v. Pacific Fire Insurance Co., 159 Ga. 248 (125 S. E. 470); Clark v. Fire Association of Philadelphia, 159 Ga. 567 (126 S. E. 387). More than one of such decisions by this court were concurred in by all of the Justices, and, unless and until reviewed and overruled in the manner provided by law, are binding as authority. To the same effect see Briesenick v. Dimond, 165 Ga. 780 (142 S. E. 118), where it was held: “The assignments of error in the petition for certiorari not being such as to justify a grant of that writ, it is dismissed as having been improvidently granted.” That was also a decision in which all of the Justices concurred. A thorough discussion of the principles of law which should govern the action of the court in cases of this type will be found in the Tomlin decision, supra, and it is unnecessary to repeat in terms what was there said. Under the principles so enunciated, the present writ must be dismissed on the ground that it was improvidently granted. Writ of certiorari dismissed. All the Justices concur, except