Holsey v. Macon, Dublin & Savannah Railroad

Eussele, J. (After stating the foregoing facts.) The common-law rule that a servant, as a part of his contract of employment, assumes the ordinary and usual risks of the employment is subject to an exception in Georgia, when applied to common carriers by railroad. Owing to the peculiar nature of the employment, the doctrine that the servant of a common carrier by railroad contracts to assume the risk of the negligence of a fellow servant has been abolished, but where the proximate cause of an injury is the negligent act of a fellow servant, the injured employee has a cause of action against the common master. In order to bring himself within the benefit of this rule, the injured employee must show that he himself was free from fault. Civil Code, §§2297, 2323. The quantum of care exacted of the servant is ordinary care and diligence. Central Railroad Co. v. Lanier, 83 Ga. 587 (10 S. E. 279). While in some of the cases there are expressions such as that the servant must show that he was "wholly blameless” (Thompson v. Central Railroad Co., 54 Ga. 510), or that he did not "immediately or remotely, directly or indirectly, cause -the injury or any part of it, or contribute to it all” (Prather v. Richmond & Danville R. Co., 80 Ga. 427 (9 S. E. 530)), these expressions simply mean that the servant must make it appear that he has used the utmost ordinary care and diligence, and do not mean that he must show that he has used extraordinary diligence. Central Ry. Co. v. McClifford, 120 Ga. 90 (5), 94 (47 S. E. 590); Macon R. Co. v. Joyner, 129 Ga. 686 (59 S. E. 902). The employee of a railroad company, when suing for personal injuries, makes out ;a prima facie case by showing that he was injured through the running of the cars or other machinery of the railroad and that he was free from negligence or fault. Or he [640] can make out a prima facie ease by proving injury through the running or operating of the machinery, and then the negligence of -the company, in which event it will be presumed that he was without fault. In other words, when the employee shows injury, and either his freedom from fault or the negligence of the company, he has made out a prima facie case. Of course, if in proving the injury it appears from his evidence either that he was not free from fault or that the master was free from negligence, it would be proper to grant a nonsuit, since both his own freedom from fault and the negligence of the company are essential to his cause of action. Atlanta & Birmingham Ry. v. McManus, 1 Ga. App. 302 (58 S. E. 258); Lucas v. Southern Ry. Co., 1 Ga. App. 810 (57 S. E. 1041); Hubbard v. Macon Railway & Light Co., 5 Ga. App. 223 (62 S. E. 1018); Southern Ry. Co. v. Rutledge, 4 Ga. App. 80 (60 S. E. 1011); Austin v. Central Ry. Co., 3 Ga. App. 775 (61 S. E. 998). A restatement of these well known rules is justified only on the ground that it will help to a clear application of them to the case at bar. Does the evidence show that the plaintiff was free from fault, or that the question as to whether he was free from fault should have been submitted to the jury?' If so, there can be no doubt that the court erred in granting a nonsuit, since, if he made this fact appear, there was a presumption that the master was negligent. It appears, from the evidence, that the injured employee was in the discharge of his duty as a brakeman, intently engaged in the work at hand at the time he was injured. Was he negligent, as a matter of law, in starting the car rolling down hill under the supervision and direction of the conductor ? If not, was he negligent in mounting the car, for the purpose of applying- the brakes as it was his duty to do, or in remaining at his post of duty when a dangerous emergency arose and when the conductor yelled to him to remain there and “hold the ear?” We think the questions are answered in the asking. The only theory upon which it could be contended that the brakeman was negligent was his failure to jump from the car when he discovered that the brake was not working; and even if this could be called negligence in any event, the direct command of the conductor in this instance justified him in not jumping; or at least it would take from his act in failing to jump the quality of negligence as a matter of law. [641] We do not mean to say that a direct command of the conductor would justify a brakeman in risking an obvious and apparent danger, but there was no such obvious or apparent danger in the present case. If the lumber had not slipped off endwise, the injury would not have been inflicted; and there was nothing to make it apparent that the lumber would slip off endwise. The cause of the lumber slipping off endwise was the combined result of the way it was loaded and the force of the contact with the cars; and the brakeman could hardly be charged with the ability to figure out, in the emergency, that if he remained at his post, this result would follow. The direct command of the conductor to stay there and hold the car was an assurance that he could do the act commanded, without risk of injury. Alabama Great Southern R. Co. v. Fulghum, 94 Ga. 571 (19 S. E. 981); Fenn v. Seaboard Air-Line Ry., 120 Ga. 664 (48 S. E. 141); Central Railroad v. DeBray, 71 Ga. 406; Mills v. East Tenn., Va. & Ga. Ry. Co., 87 Ga. 102 (13 S. E. 205); Austin v. Central Ry. Co., supra. But there is another ground upon which the case should have been submitted to the jury. After the brakeman was pinned between the lumber and the brake with the end of the brake handlebar penetrating his stomach, the engine and seven or eight cars were backed on to the car. The place was on a down-grade. It .is absolutely impossible to make a coupling between an engine and a string of cars and another car without considerable jar, even when the utmost care is used by the engineer; and especially is this true where the coupling is made on a down-grade track, instead of a level track. It is difficult to see why in any event the engine was backed on to the car while the brakeman was pinned in the manner mentioned above, for this did not extricate him from his perilous position. He was extricated by the lumber being moved. But if it was necessary that the car on which he was located should be moved, it should have been moved by hand, or else by the use of a coupling chain, and not by backing the engine and the cars directly onto that one on which the injured brakeman was located, with the iron handle-bar of the brake penetrating his stomach. While it is not entirely clear from the record just what effect this had on the brakeman’s injuries, it does appear that he was alive at the time, and that even after he was taken out he lived for half an hour. A fuller investigation may disclose [642] that this conduct was not the proximate cause of the brakeman’s injuries; but from the evidence as it appears in the record, the jury might have inferred that the train-crew was guilty of negligence toward the brakeman after he was in a situation where the slightest jar might cause his death. The case should have been submitted to the jury, and the judge erred in granting a non-suit. • Judgment reversed. Powell, J,, dissents.