In an action brought under the Federal Employers' Liability Act (45 U.S.C.A. § 51 et seq.), where it appears from the allegations of the petition, when construed most strongly against the pleader, that the negligence which caused the injuries complained of was that of the employee who failed to notice and avoid a large clinker in the railroad yard, but instead stepped on the same and fell, and where the alleged facts fail to disclose any negligence on the part of the employer which caused or contributed to the alleged injury, the employer is not liable to such employee, and the trial court did not err in sustaining a general demurrer to the employee's petition and in dismissing the action.
DECIDED OCTOBER 2, 1948. REHEARING DENIED OCTOBER 22, 1948.
Richard J. Brown sued Western Railway of Alabama in Fulton Superior Court for injuries sustained while in the employ of said company. The petition alleged substantially the following: The defendant railroad is a corporation having an office, agent, and place of doing business in Fulton County, and has injured and damaged petitioner in the sum of $5000. The plaintiff was employed on or about August 25, 1947, by Atlanta and West Point
Railroad Company as a brakeman on freight train No. 1, running from Atlanta to West Point, and by Western Railway of Alabama, the defendant, on this same train while it was running from West Point, Georgia, through Opelika, Alabama, to Montgomery, Alabama. "Petitioner while engaged in the employment aforesaid was injured as a result of the negligence of defendant when he slipped and fell on a large clinker lying beside the track in the switch yards of Opelika, Alabama, over which it was necessary for petitioner to cross in giving signals to his engineer. . . The yards aforesaid are jointly operated by the defendant and the trustees of the Central of Georgia Railway Company. . . Defendant had allowed clinkers, coal, bottles, tie plates, trash, and other debris to collect in said yards along the side of the tracks and . . it was necessary for petitioner, in the performance of his duties, to cross over such material and debris. . . It was the duty of defendant to use reasonable and proper care to provide him a reasonably safe place in which to work in the course of his duties and employment. . . The defendant did not regard its duties in this behalf to use reasonable and proper care to provide plaintiff a reasonably safe place in which to discharge his duties as aforesaid, but directed him to work in said yards at said time under the conditions above described. . . The debris aforesaid scattered along beside the tracks and over said yards at said time made [the] yards unsafe for use by petitioner in the performance of his duties, and . . defendant thereby negligently failed to furnish petitioner a reasonably safe place in which to work by reason thereof. . . Petitioner, while switching cars in the yards aforesaid, ran around the engine, as his duties at said time required, to mount the top of cars being handled so that he could see the back end of the cut of cars and the engineer at the same time and give the necessary signals for the switching movement there being made, and while in the performance of such duties as aforesaid, he stepped on a large clinker lying beside the tracks as aforesaid, which caused petitioner to fall and be injured in the particulars hereinafter set out." The petition contains a description of the plaintiff's injuries and shows that a bone of his right foot was broken, which did not at first heal properly, with resulting pain and the loss of time from work. It is alleged that $1304.01 was lost in wages because of his inability to work
as a result of the injuries. Negligence is charged to the defendant in the following particulars: "(a) In failing to furnish plaintiff with a reasonably safe place in which to work as herein alleged. (b) In leaving clinkers, bottles, tie plates, sticks, trash, and other debris along the side of track in its yards as aforesaid, well knowing that said yards in such condition were dangerous for use by brakeman working therein and that petitioner would have to perform his duties with said yards in such condition. (c) In not removing clinkers, bottles, tie plates, sticks, trash, and other debris from its yards before assigning plaintiff to work therein at said time and place as herein alleged." The plaintiff shows that he and the defendant were engaged in interstate commerce at the time of the accident.
The defendant filed a general demurrer to the petition. The case is here on exceptions to the order sustaining the general demurrer and dismissing the petition.
This is an action in which recovery is sought for injuries sustained by an employee of a railroad company engaged in interstate commerce while such employee was engaged in the performance of his duties, and is controlled by the provisions of the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. Although brought in a State court, all matters of substance are controlled by Federal law. Seaboard Air Line Railway v. Horton, 233 U.S. 492 (3) (34 Sup. Ct. 635, 58 L. ed. 1062, L.R.A. 1915C, 1, Ann. Cas. 1915B, 475); Central of Ga. Ry. Co. v. Goens, 30 Ga. App. 770, 773
(119 S.E. 669); Southern Ry. Co. v. Bradshaw, 73 Ga. App. 438,440 (37 S.E.2d 150). "The act does not make the employer the insurer of the safety of his employees while they are on duty. The basis of his liability is his negligence, not the fact that injuries occur. And that negligence must be `in whole or in part' the cause of the injury." Ellis v. Union Pacific R. Co.,329 U.S. 649 (67 Sup. Ct. 598, 91 L. ed. 572); Brady v.
Southern Ry. Co., 320 U.S. 476, 484 (64 Sup. Ct. 232,88 L. ed. 239); 45 U.S.C.A. § 51. Where the act or acts, or the failure to act, which resulted in the injury are the acts or omissions of the employee who is
injured, and those acts or the failure to act constitute the negligence which brought about the injury, and there is no negligence on the part of the employer which caused or contributed to the injury, such employer is not liable therefor. McGivern v. Northern Pacific Ry. Co., 132 Fed. 2d, 213 (11). Also see Frese v. Chicago, B. Q. Ry. Co., 263 U.S. 1
(44 Sup. Ct. 1, 68 L. ed. 131); Atchison, T. S. F. R. Co. v.
Toops, 281 U.S. 351 (50 Sup. Ct. 281, 74 L. ed. 896); Powell
v. Waters, 55 Ga. App. 307 (190 S.E. 615); Tankersley v.Southern Ry. Co., 73 Ga. App. 88, 91 (35 S.E.2d 522);Atlantic Coast Line R. Co. v. Anderson, 73 Ga. App. 343,349 (36 S.E.2d 435). Hence, it is of primary consideration whether the petition shows negligence on the part of the employer which is in whole or in part the cause of the injury, and in determining the sufficiency of the allegations of the petitioner in this respect on general demurrer to the petition, which admits only facts well pleaded, and not the conclusions of the pleader, the allegations will be construed most strongly against the pleader. Stripped of its details, the petition shows that the plaintiff was injured while in the performance of his duties when he stepped on a large clinker lying alongside the track in the railroad yards. In the absence of allegations to the contrary, the inference arises that the plaintiff's vision was unobscured and that he could have seen and avoided the clinker. Although the presence of other debris in the yards is shown in the petition, it is not shown that this debris was in any way responsible for the accident. The mere presence of a large clinker in a railroad yard can not be said to constitute an act of negligence. Furthermore, it is not shown how or for what length of time the clinker was in the yard, or wherein it rendered the yard unsafe for employees accustomed to work there. In so far as the allegations of the petition show, the sole cause of the accident was the act of the plaintiff in stepping on this large clinker, which he was able to see and could have avoided. It was he who, without any outside intervention, failed to look, stepped on the clinker, and fell. Under such circumstances, there is no question of negligence on the part of the defendant to present to a jury, and the trial court did not err in sustaining the general demurrer and in dismissing the action.
Careful consideration has been given to the briefs of counsel for
the plaintiff in error, and the authorities there cited do not authorize or require a different ruling from the one herein made. The cases dealing with the abolition of the doctrine of assumption of risk in actions arising under the Federal Employers' Liability Act, and the effect of contributory negligence under the act, are necessarily predicated upon a showing of negligence on the part of the employer, and are inapplicable to the case at bar.
Judgment affirmed. Felton and Parker, JJ., concur.