Wood v. Southern Railway Co.

Felton, C. J. 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. 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.