Brown v. Southern Railway Co.

Court of Appeals of Georgia

Brown v. Southern Railway Co.

151 S.E.2d 519, 114 Ga. App. 429, 1966 Ga. App. LEXIS 791

CourtCourt of Appeals of Georgia

DecidedSeptember 22, 1966

Docket42071, 42072

StatusPublished

Cited by1 cases

This text of 151 S.E.2d 519 (Brown v. Southern Railway Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Brown v. Southern Railway Co., 151 S.E.2d 519, 114 Ga. App. 429, 1966 Ga. App. LEXIS 791 (Ga. Ct. App. 1966).

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Opinions

Felton, Chief Judge.

“A railroad company whicli is a common carrier, if either the initial or the ultimate carrier, transporting a car containing freight, owes a duty to the consignee or his servant, when either the consignee or his servant is engaged in the business of unloading a car after it has arrived at its destination. This duty is to see that the car and its devices for unloading it are reasonably safe for such purpose. This is [431]*431true although the journey of the car is ended and it has been switched upon a side track belonging to the consignee. S. F. & W. R. Co. v. Booth, 98 Ga. 20 (25 SE 928); Sykes v. St. Louis Railroad, 178 Mo. 693 (77 SW 723)(Emphasis supplied.) Roy v. Ga. R. & Bkg. Co., 17 Ga. App. 34 (2) (86 SE 328). The allegation that the defendant common carrier's duty, upon which the plaintiff-employee was entitled to rely, was “to place the cars on the track in a safe condition,” is not a correct allegation of the duty placed upon the common carrier by the law, as the ultimate carrier is not an insurer of the safe condition of its cars, but is under a duty to exercise ordinary care to keep them in a reasonably safe condition. There being no allegations showing any duty as alleged on the part of the defendant common cai’rier, by agreement or otherwise, the court properly sustained the special demurrer to said allegations.

The duty of the defendant common carrier, as defined in Roy v. Ga. R. & Bkg. Co., 17 Ga. App. 34, supra, and cit., is “to see that the car and its devices for unloading it are reasonably safe for such purpose” (emphasis supplied), i. e., the purpose of unloading. Although it is alleged that the plaintiff-employee was engaged in the unloading of the cars at the time of his injury, it is not alleged that the use of the coupling equipment in this case was either necessary or intended in the unloading of the cars. Hence, no negligence is alleged against the railroad, because, unless the equipment used here was intended to be used in unloading, there was no reason for the railroad to anticipate that it would be so used and exercise precaution to avoid injury from such unexpected use. The plaintiff-employee was not an employee of the defendant, so the general rules as to the duty to furnish a safe place to work do not apply. The plaintiff's employer was protected by the duty of the railroad to exercise ordinary care in having the cars reasonably safe for unloading only and this duty extended through the employer to the plaintiff. Defendant owed the plaintiff-employee no other duty. Jusko v. Youngstown & N. R. Co., 89 Ohio App. 496 (102 NE2d 899); Southern R. Co. v. Morrison, 105 Ga. 543, 549 (31 SE 564); Holland v. Sparks, 92 Ga. 753, 754 (18 SE 990).

The court did not err in its judgment sustaining the general and special demurrers to both petitions.

[432]*432 Judgment affirmed.

Frankum, J.; concurs. Pannell, J., concurs specially.

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Felton, Chief Judge.

“A railroad company whicli is a common carrier, if either the initial or the ultimate carrier, transporting a car containing freight, owes a duty to the consignee or his servant, when either the consignee or his servant is engaged in the business of unloading a car after it has arrived at its destination. This duty is to see that the car and its devices for unloading it are reasonably safe for such purpose. This is [431]*431true although the journey of the car is ended and it has been switched upon a side track belonging to the consignee. S. F. & W. R. Co. v. Booth, 98 Ga. 20 (25 SE 928); Sykes v. St. Louis Railroad, 178 Mo. 693 (77 SW 723)(Emphasis supplied.) Roy v. Ga. R. & Bkg. Co., 17 Ga. App. 34 (2) (86 SE 328). The allegation that the defendant common carrier's duty, upon which the plaintiff-employee was entitled to rely, was “to place the cars on the track in a safe condition,” is not a correct allegation of the duty placed upon the common carrier by the law, as the ultimate carrier is not an insurer of the safe condition of its cars, but is under a duty to exercise ordinary care to keep them in a reasonably safe condition. There being no allegations showing any duty as alleged on the part of the defendant common cai’rier, by agreement or otherwise, the court properly sustained the special demurrer to said allegations.

The duty of the defendant common carrier, as defined in Roy v. Ga. R. & Bkg. Co., 17 Ga. App. 34, supra, and cit., is “to see that the car and its devices for unloading it are reasonably safe for such purpose” (emphasis supplied), i. e., the purpose of unloading. Although it is alleged that the plaintiff-employee was engaged in the unloading of the cars at the time of his injury, it is not alleged that the use of the coupling equipment in this case was either necessary or intended in the unloading of the cars. Hence, no negligence is alleged against the railroad, because, unless the equipment used here was intended to be used in unloading, there was no reason for the railroad to anticipate that it would be so used and exercise precaution to avoid injury from such unexpected use. The plaintiff-employee was not an employee of the defendant, so the general rules as to the duty to furnish a safe place to work do not apply. The plaintiff's employer was protected by the duty of the railroad to exercise ordinary care in having the cars reasonably safe for unloading only and this duty extended through the employer to the plaintiff. Defendant owed the plaintiff-employee no other duty. Jusko v. Youngstown & N. R. Co., 89 Ohio App. 496 (102 NE2d 899); Southern R. Co. v. Morrison, 105 Ga. 543, 549 (31 SE 564); Holland v. Sparks, 92 Ga. 753, 754 (18 SE 990).

The court did not err in its judgment sustaining the general and special demurrers to both petitions.

[432]*432 Judgment affirmed.

Frankum, J.; concurs. Pannell, J., concurs specially.

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151 S.E.2d 519, 114 Ga. App. 429, 1966 Ga. App. LEXIS 791, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-southern-railway-co-gactapp-1966.

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