Opinion
35190.
DECIDED OCTOBER 7, 1954.
Damages. Before Judge Forehand. Tift Superior Court. March 1, 1954.
Bennet Vann, Thomas K. Vann, R. D. Smith, for plaintiff in error.
Maxwell A. Hines, Bob Reinhardt, contra.
1. Special grounds 1 and 4 show reversible error, because the pleadings and the evidence brought into issue the question of contributory negligence on the part of the employee. The evidence adduced is not sufficient to demand a finding that the plaintiff was not guilty of contributory negligence causing his injury. In the absence of a request so to charge, the court committed reversible error in not charging the law of contributory negligence regarding the issue on this question raised under the pleadings and the evidence.
2. As to special grounds 2 and 3, we refer interested parties to divisions 2 and 3 of this opinion.
DECIDED OCTOBER 7, 1954.
Ned Shed, defendant in error here (whom we shall call the plaintiff), filed a petition in the Superior Court of Tift County against Atlantic Coast Line Railroad Company, plaintiff in error (whom we shall call the defendant), seeking to recover damages for alleged negligence of the defendant. The petitioner alleged that he was 53 years of age and employed as a section hand by the defendant, and that the action was brought under the provisions of the Federal Employers' Liability Act. It is alleged that the plaintiff was engaged at the time of the alleged injury in repairing a section of railroad track by pulling and replacing worn and defective crossties for the defendant in the furtherance of its business of interstate commerce, and under the supervision of a section foreman; and further that the plaintiff was working with a team-mate pulling crossties which had been marked by the section foreman. The pulling was being done with a large tong known as a "dog." The petition alleged that the plaintiff's team-mate negligently pulled his end of the "dog" without any warning with a sudden and extremely forceful pull or jerk, causing the end of the handle held by the plaintiff to strike the plaintiff in the abdomen; that the steel rails were not jacked up high enough to permit normal removal of the crossties, and the plaintiff called to another employee operating the jacks within the hearing of the section foreman, and asked that the rails be jacked up further, but the section foreman ordered that the rails be jacked up no further because the track would hump; and that, if the crossties were jacked higher, they would cause ballast to go under the rails and make a hump; that the failure to have the steel rails jacked properly was negligence; that the plaintiff was ruptured as a result of the alleged negligence, and he seeks damages for loss of earnings, pain and suffering, and a high degree of permanent disability; and that the plaintiff was not in any manner negligent in the performance of his duties at the time of his injury.
The defendant specially demurred to some of the paragraphs of the petition, and it was thereafter amended to meet the demurrer. The defendant filed its answer, admitting the jurisdictional allegation of the petition, and that the cause of action was one arising under the provisions of the Federal Employers' Liability Act. The defendant denied that it was negligent, and denied the paragraph of the petition alleging that the plaintiff was not negligent in any manner in the performance of his duties and that in no manner did he contribute to his injury. The evidence developed at the trial revealed, according to the plaintiff's testimony, that the plaintiff had been regularly employed for eight years by the railroad company as a section hand at the time of his injury. He testified that, on the day he was hurt, the section gang was pulling defective crossties on a section of track near Tifton, Georgia; that rails customarily are jacked up to permit removal of the crossties; that the last crosstie had a hump in it which caught on a steel rail; that four jacks were used; two were set by the side at the crosstie and two were set further down the rail; that, at the time of the injury, the plaintiff was working with a team-mate, George Gray, using a large tong called a "dog" in pulling the crosstie. The plaintiff further testified that, when working on the crosstie in question, he asked the section foreman for another notch on the jacks; that the section foreman stated that the jacks were high enough and another notch on them would cause the steel rail to hump; that the plaintiff told his team-mate, "Let's work the ties a little bit."
At this point the following questions were propounded and the following answers given: "Q. Ned, did you give George Gray a signal? A. I give him a signal but he jumped the gun. Q. He jumped the gun? A. Yes, sir. Q. Ned, tell the jury how that happened. A. I told George to let's work it a little bit, and I says `Let's go', and before I could get straightened up he snatched it out and the dog hit me in the side right here."
The plaintiff further testified that, after the "dog" had been given to another section hand, the plaintiff went to some shade; that the other section hand told the plaintiff that the "bear," (meaning heat) had him, whereupon the plaintiff said that the "dog" had hit him. The plaintiff testified on cross-examination that he was hurt on August 29, 1950, and he continued to work the rest of that week; that on Friday of that week he went to see a doctor about chills and fever, but didn't tell the doctor about getting hurt; that he didn't tell his section foreman about getting hurt until the last part of September; that the day he told his section foreman was the day he quit work; that he didn't tell any of the people he worked with that his side hurt until he reported to his section foreman the day he quit work.
There are a few more excerpts from the testimony of the plaintiff which might be helpful in deciding the issue raised in this case. He testified that, up to August 29, 1950, his regular wages were from $83 to $92 twice a month after deductions; that, prior to that time (meaning the time of the alleged injury), the plaintiff had lost no time from his work; that, since that day he put on the truss prescribed by Doctor Pittman (apparently September 19, 1950), he had been picking a little cotton and picking a few plants; that he could not work a whole day and that since he put on the truss he had been able to make only about $15 or $20 per week.
The evidence of the defendant contradicted that of the plaintiff in many instances, among them what the plaintiff said and didn't say on the occasion he was injured. The jury returned a verdict for the plaintiff for the principal sum of $2,500. We have not attempted to set forth all the evidence either for the plaintiff or for the defendant, but we think we have set out a sufficient amount of the evidence to illustrate the opinion of the court and we are not, in this opinion, passing upon the question as to whether or not the evidence sustains a verdict on the statutory grounds, since the case may be tried again. Therefore, we will deal with the special grounds only. The defendant filed a motion for new trial on the statutory grounds and later added four special grounds. The court denied this motion, and error is assigned here on that judgment.
1. Special grounds 1 and 4 contain related questions. The case at bar was tried under the provisions of the Federal Employers' Liability Act. All matters of substantive law are controlled by the provisions of that act. The plaintiff and the defendant are entitled to the benefit, in all State courts, of all the substantive law of that act of Congress. The trial court charged the jury on the essential provisions of said act as found in 45 U.S.C.A. §§ 51 and 54, relating to the cause of action arising under the law and the doctrine of assumption of risk as limited in said act. Special grounds 1 and 4 assign error because the trial court nowhere charged the jury the terms of 45 U.S.C.A. § 53, which defines and limits the rule of contributory negligence as follows: "In all actions hereafter brought against any such common carrier by railroad under or by virtue of any of the provisions of this chapter to recover damages for personal injuries to an employee, or where such injuries have resulted in his death, the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee." The doctrine of contributory negligence established in the Federal Employers' Liability Act is distinctly different from the doctrine at common law or under the general statutory rules. Under the Federal Employers' Liability Act, an employee could be negligent 99.99 percent and the employer only 00.01 percent negligent and the employee would still be entitled to recover in proportion. The effect of the negligence of the employee is interwoven with the entire scheme of the act of Congress so that it is one of the substantive features of the law. The employee is not barred by his own negligence, but the law contemplates that it is proper and just that any damage which he might recover would be in the ratio that the negligence of the employee bears to the negligence of the employer and the employee. The question before us in special grounds 1 and 4 is that the court nowhere in its charge to the jury told them the law regarding contributory negligence of the employee and the proportionate ratio of the negligence of the employee to the total negligence of the employer. Counsel for both parties concede that the court did not charge this principle of law.
We will discuss first that the issue must be made in the pleadings. In the instant case the plaintiff in his petition affirmatively pleaded that he was not negligent and did not contribute in any way by his own negligence to bring him under the contributory negligence provision of the law, and the defendant in its answer denied this allegation of the plaintiff. There is no question in our minds that this made a direct issue as to the pleadings. The only other thing which must appear is whether or not this evidence produced at the trial was sufficient to make an issue as to contributory negligence. Counsel for both parties agree that, if the evidence is sufficient to form the issue of fact along with the issue drawn by the pleadings, the trial court committed reversible error in failing to charge, without a request, as set out hereinbefore. Hence it is that we have set out certain of the evidence somewhat in detail hereinabove. There seems to be, throughout this whole case, no material difference between counsel as to the law applicable to this case insofar as special grounds 1 and 4 are concerned. It is contended by the plaintiff that the evidence demanded a finding that the plaintiff was guilty of no contributory negligence causing his injury. We differ with the contention of counsel for the plaintiff in this respect. The evidence presents sufficient facts to require that a fact-finding body pass on this issue under the record as it appears now. There are many cases cited by both parties but, as stated above, there is no substantial or material difference of opinion between counsel as to the law covering this issue. The court erred in its failure to charge as complained of in special grounds 1 and 4.
Special ground 2 is abandoned.
2. Special ground 3 complains because the court erred in charging: "I charge you in this case that, if you find that the plaintiff has suffered injury to his person which will incapacitate him or reduce his earning capacity for a time extending into the future, the jury would determine the extent of the diminution of capacity to earn money, for how long a time that loss or diminution will continue, and the reasonable value of his lost earnings. Having done that, the jury would reduce that loss to its present cash value, using as a basis of reduction, seven percent per annum as the legal value of money in Georgia." And because the court had charged previously as follows: "If you believe that the plaintiff is entitled to recover and if the evidence shows that he has lost time from his work due to his injuries and consequently lost money, and shows you with reasonable certainty the sum of money he thus lost, that sum should be awarded to the plaintiff as damages, if you believe he is entitled to recover. . .
"Gentlemen, you look to the evidence, and determine from the evidence just what sort of injury the plaintiff received, its character as to producing or not producing pain, its mildness or intensity of pain, its probable duration, whether it has ceased or whether it has continued to this day, or whether it may continue in the future, then, desiring to be fair and just to both parties, you will give to the plaintiff, if he recovers, just such sum as you think would be fair compensation for pain and suffering, if any, due to the injuries received on this occasion. As to the amount, the law declares there is no standard by which to measure it, except the enlightened consciences of impartial jurors."
These excerpts from the charge are contended to be erroneous on a number of grounds. Assignments of error (a), (b), and (c), that there was no evidence to authorize a recovery for diminished earning capacity, that such recovery was not sought by the pleadings, and that the jury was authorized to find only a temporary disability to labor, are not sustainable. A railroad doctor testified that the plaintiff had a hernia; that he could not state the length of its duration, and that surgery was advised, as a result of which "the probability of successful rehabilitation" would be "pretty good." The plaintiff testified that before the accident he worked steadily; that at the time of the trial he could not work a full day; and that his earnings had decreased by more than half, and he was still suffering great pain. This evidence authorized charges on lost earning capacity extending into the future, loss of earnings in the past, and damages for pain and suffering. Nothing in the quoted charge would have confused the jury into believing that double damages could be awarded "for the reasonable value of lost earnings and lost time from work," or "lost earnings during the period of disability and also the value of lost earnings as a result of a diminution of capacity to earn money during the same period," as contended in assignments of error (d) and (e). Where that loss of earning capacity which is an element of pain and suffering is confused with loss of future earnings, such charge is error. Central of Ga. Ry. Co. v. Morgan, 145 Ga. 656 ( 89 S.E. 760). It does not appear that such error was made in this case. Cf. Callaway v. Pickard, 68 Ga. App. 637 (5) ( 23 S.E. 564); Powell v. Jarrell, 65 Ga. App. 453 (9) ( 16 S.E.2d 198), in which cases somewhat similar charges were held not subject to the criticism that they allowed a recovery of double damages. It should be added, however, that although the charge here would not authorize a reversal of this case, care should be taken in instructing the jury to clearly separate for them the items of damage on which recovery may be had, in order that no confusion may result.
3. It is contended that the trial court erred, as set out in special ground 2, in reading 45 U.S.C.A. § 51, relating to the forms of negligence under which the defendant railroad company would be liable to the plaintiff employee, in its entirety, so as to include, among the acts of negligence "of any of the officers, agents or employees of such carrier," the words "by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed . . . or other equipment." The contention is that the jury might have thought from this that the action was predicated on defects in the railroad crossties on which the plaintiff and the fellow employee were working, and that such defects caused his injuries, and not the negligence of the fellow employee. The charge as a whole was clear that the plaintiff was seeking to recover because of the negligence of his fellow servant, and was adjusted to this issue, for which reason the portion complained of here was not harmful to the movant.
The general grounds are not passed upon, as the case is to be tried again.
The court erred in denying the amended motion for new trial.
Judgment reversed. Townsend and Carlisle, JJ., concur.