Southern Railway Co. v. Simmons

Jenkins, J. (After stating the foregoing facts.) Since this action was brought under the Federal "employer’s liability act,” the provisions of that act are controlling, and the >0086 must be decided in accordance therewith. As was held in — 102 — Charleston &c. Ry. Co. v. Sylvester, 17 Ga. App. 85 (86 S. E. 275) : “In a suit brought under the Federal ‘employer’s liability act/ except as to violations of Federal statutes for the protection of employees, assumption of risk is an absolute defense, while contributory negligence merely reduces the damages. Roberts, Injuries to Interstate Employees, § 130; Seaboard Air-Line Ry. v. Horton, 233 U. S. 492 (34 Sup. Ct. 635, 58 L. ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475).” In such a case there is no presumption of negligence against the defendant, and it is well settled that, under the provisions of this act, the plaintiff not only assumed whatever risks were normally incident to his employment, but also those defects and risks which were known to him, or which Avcre plainly observable, although due to the master’s negligence. See Charleston &c. Ry. Co. v. Sylvester, supra, and cases cited. It will be borne in mind that in cases of this sort, no matter what acts of negligence on the part of the defendant may be shown by the evidence, the plaintiff must recover, if at all, upon proof of one or more of the specific acts of negligence alleged in the petition, and that there can be no recovery unless one or more of these acts is established by proof. See Jarrell v. Seaboard Air-Line Ry., 23 Ga. App. 719 (99 S. E. 386 (1-b) ), and cases there cited. In the case of Southern Railway Co. v. Blackwell, 20 Ga. App. 630 (93 S. E. 321), which was a case very similar to the one now under review, this court held that “One of the risks assumed by the plaintiff in this case (who was employed as a track-hand), upon entering the service of the railway company, was the danger ordinarily incident to the usual and proper operation of its trains over the track upon which he was at work. This proposition is the fundamental principle underlying the decision of the Supreme Court in the case/of L. & N. Railroad Co. v. Kemp, 140 Ga. 657 (79 S. E. 558).” In the Kemp case, the plaintiff was foreman in charge of a force of section-hands, and his duties required him to inspect and maintain the tracks and roadway of the defendant upon his section. While engaged in the inspection of the tracks he was confronted with an emergency occasioned by the sudden appearance of a freight-train, operated in the usual method, which rounded a curve, and in attempting to remove from the track the hand-car on which he was riding, and avoid the impending danger to himself and his hand-car, he was injured. The Supreme — 103 — Court expressly ruled in that case that under this state of facts the plaintiff could not recover. It was further held in the Blackwell case that “To justify a recovery for injury caused by a train striking a section-hand while engaged in repairing a track, it must be shown that the proximate cause of his injury was the railway company’s neglect of some duty to him in respect to his protection from injury by passing trains,” citing Norfolk &c. Ry. Co. v. Gesswine, 144 Fed. 56 (75 C. C. A. 214); Aerkfetz v. Humphries, 145 U. S. 418 (12 Sup. Ct. 835, 36 L. ed. 758); Ellis v. Louisville &c. Ry. Co., 155 Ky. 745 (160 S. W. 512); Morris v. Boston & Maine Rd., 184 Mass. 368 (68 N. E. 680); and quoting from the case of Woods v. St. Louis &c. R. Co., (Mo), 187 S. W. 11, as follows: “It is not the duty of a railroad company to notify sectionmen that any certain trains are expected to pass over the road, but it is their duty to be on the lookout and keep out of the way.” In the case of Connelley v. Pennsylvania R. Co., 201 Fed. 54, 56 (119 C. C. A. 392, 47 L. R. A. (N. S.) 867), the Circuit Court of Appeals said: “It is an obvious fact that many occupations, as for example a powder mill operator, a structural iron worker, a diver, a blaster, a trackwalker, necessarily subject those who follow them to great danger. When, therefore, a man contracts for such employment, he knows and takes on himself the risks and dangers incident to such dangerous work. His assumption of those obvious and unavoidable risks is in the very nature of things part of his employment. It follows, therefore, that the employer violates no legal duty to the employee in failing to protect him from dangers which cannot.be escaped by any one doing such work. . . It is obvious that even where a railroad operates its trains and moves its switch drafts in a proper and careful manner, trackwalkers and repairmen are necessarily subjected to great risks. Their very occupation is one of constant peril. Indeed, it follows from the nature of such employment that the duty of self-preservation has to rest on them, for no adequate protection, other than self-protection, can be afforded them. And such has been the reasonable holding of the law. . . Indeed, in thus making self-protection the substantial safeguard of trackwalkers and section-men, the law is reasonable and just, for no other dependable safeguard can be afforded their perilous work in the practical operation — 104 — of railroads.” And in the case of Linz v. Chicago, B. & N. R. Co., 93 Wis. 16 (66 N. W. 718), the Supreme Court of Wisconsin held: “A section-hand whose duties required him to ride over the road on a liand-car, and who had been, notified by the company, and of his knowledge knew, that wild trains were frequently run over the road at a high rate of speed, assumed the risk of injury from being run into by one of these trains running at a high rate of speed on a foggy morning.” Applying this principle of law to the facts adduced upon the trial of this ease, we are compelled to set aside the verdict in favor of the plaintiff. As has already been stated, there is ño presumption of negligence against the defendant in this case. It will be seen from the plaintiff’s own 'testimony and that of the witnesses sworn in his behalf, as well as from the uncontradicted evidence in behalf of the defendant, the employees of the defendant in charge of its locomotive and cars which injured the plaintiff used all ordinary care and diligence to avoid the injury. The plaintiff, besides knowing that he might expect a train along this track at any time, was in point of fact specifically warned of, and saw the approach of, the train which caused his injuries, in ample time to have avoided the injury by the exercise of the slightest degree of care upon his part. There is no evidence to show that the engineer in charge of the defendant’s train could, in the exercise of the degree of care required by law, have known of the presence of the plaintiff on the track. According to the testimony of the plaintiff himself, it was not good daylight at the time he was injured; and while he testified, “I don’t think it was misty, I wouldn’t say,” the positive testimony of the foreman in charge of the section-crew, who was sworn in behalf of the plaintiff, and the engineer in charge of the train which caused the injury, sworn in behalf of the defendant, was to the effect that it was cloudy, misty, foggy? and smoky, and that the engineer couldn’t have seen the car and the plaintiff a distance of more than fifty feet. The cloudy, misty, foggy, and smoky condition existing at the time the injury occurred prevented the engineer from seeing the plaintiff in time to avoid the accident. When the engine came out of the cut and around the curve onto the straight stretch, it was running at the usual rate of speed of about 35 or 40 miles per hour, but, due to its close proximity to the hand-car at the time its presence was — 105 — discovered, it was impossible to stop the train in time to prevent striking the hand-car, although the brakes were applied and the engineer did everything in his power, when the emergency arose, to avoid injuring the plaintiff. It follows, from what has been said, that the plaintiff was guilty of no negligence in the operation of its train. It is insisted, however, that the defendant’s foreman was negligent “in ordering plaintiff to remove the lever-car from the track, as the train was so close to it,” and that the plaintiff was injured while in the line of his duty, under the orders and in the immediate presence of the “boss,” to whose orders he was subject. While it is true that a servant is bound to obey a command, when given as such, by one occupying the relation of vice-principal to the master, if it pertains to the duties of the servant’s employment and does not involve a violation of the law, and if the act required is not one which is of itself so obviously dangerous that no person of ordinary prudence could be expected to perform it, still even the direct and immediate order of the master will not justify a servant in rashly exposing himself to a known and obvious danger; and if, in compliance with the command in such cases, the servant be injured, he can not recover of the master therefor. Whiters v. Mallory S. S. Co., 23 Ga. App. 47 (97 S. E. 453); International Cotton Mills v. Webb, 22 Ga. App. 309 (96 S. E. 16). Thus, granting for the sake of the argument, that the foreman was negligent in ordering the plaintiff to remove the lever-car at the time and place that he did, the order was negligent only by reason of the close proximity of the approaching train, and this fact was, according to the plaintiff’s own testimony, known to and plainly observable- by him. In the case of Charleston &c. Ry. Co. v. Sylvester, supra, this court held that under the Federal “employer’s liability act,” the employee not only assumes the ordinary risks and hazards of his occupation, but also those defects and risks which are known to him, or which are plainly observable, although due to the master’s negligence. And in Gila Valley Ry. Co. v. Hall, 232 U. S. 94 (34 Sup. Ct. 229, 58 L. ed. 521), the Hnited States Supreme Court held that an employee “is not to be treated as assuming the risk arising from a defect that is attributable to the employer’s negligence, until the employee becomes aware of such defect, or unless it is so plainly observable that he may be presumed, — 106 — to have known of it. [Italics ours.] In order to charge an employee with the assumption of risk attributable to. a'defect due to the employer’s negligence it must appear not only that he knew (or is presumed to have known) of the defect, but that he knew it endangered his safety; or else such danger must have been so obvious that an ordinarily prudent person under the circumstances would have appreciated it.” See also Cincinnati, N. O. & T. P. Ry. Co. v. Thompson, 236 Fed. 1 (149 C. C. A. 211). Thus it is impossible to hold, under the facts as disclosed by the record in this case, that the plaintiff did not know and appreciate the obvious danger incident to remaining upon the track in the face of an oncoming locomotive, whose gleaming headlight was-staring him in the face. We are compelled to say that he assumed the risk which occasioned his injury. While constrained to hold as we do, we at the same time feel that the purpose and conduct of the plaintiff in continuing his desperate attempt to remove the hand-car from the track, in order to prevent a collision such as might imperil many passengers and others, was both fearless and highly commendable; but the law, unfortunately for the plaintiff, places upon him, and not upon the company, the risk incident to his courageous act. Judgment reversed. Wade, C. J., and Luke, J., concur.