Southern Railway Co. v. Snider

Court of Appeals of Georgia

Southern Railway Co. v. Snider

137 S.E.2d 752, 110 Ga. App. 1, 1964 Ga. App. LEXIS 530

CourtCourt of Appeals of Georgia

DecidedApril 30, 1964

Docket40605

StatusPublished

This text of 137 S.E.2d 752 (Southern Railway Co. v. Snider) 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

Southern Railway Co. v. Snider, 137 S.E.2d 752, 110 Ga. App. 1, 1964 Ga. App. LEXIS 530 (Ga. Ct. App. 1964).

Pincite

Opinions

Franiojm, Judge.

1. “A petition showing a plaintiff and a defendant, and setting out sufficient to indicate and specify some particular fact or transaction as a cause of action, shall be enough to amend by. The jurisdiction of the court may be shown and the details and circumstances of the particular transaction may be amplified and varied by amendment. If the declaration shall omit to allege facts essential to raise the duty or obligation involved in the cause of action which was evidently originally intended to be declared upon, the omitted fact may be supplied by amendment.” Code Ann. § 81-1302. Under this rule, where, as in this case, the original petition named a plaintiff and a defendant and alleged facts showing that the named plaintiff was an employee of the named defendant railroad company and that while engaged in his employment he sustained an injury as a result of his use of an allegedly defective door fastener on a boxcar, in that while using such fastener as an assist in climbing into the boxcar it gave way and caused him to fall to the ground causing the injuries sued for, but where the petition as originally drawn failed to allege facts which would have put the defendant on notice that plaintiff might use the fastener for this purpose (admittedly an unintended use), such petition, if it was subject to the general demurrer filed thereto, was so only because it omitted to allege the facts essential to raise the duty or obligation of the defendant to know of and warn the plaintiff [2]*2of the defective condition of the door fastener with respect to such unintended use, and the petition was therefore sufficient to authorize an amendment thereto- alleging facts showing such duty. Under these circumstances the objection of the defendant to the allowance of plaintiff’s second amendment to his petition was not well taken.

2. As amended, the petition alleged that the door fastener, in addition to closing the door, was used by the plaintiff and other brakemen and employees of the defendant to enable them to get into boxcars of the type here involved, and “this practice was well known to defendant.” As against a general demurrer this was a sufficient allegation that the defendant knew of the practice of the plaintiff and other brakemen and employees of the defendant to use door fasteners on boxcars of this type as an assist to gaining entry into the boxcar.

3. With respect to an action brought under the Federal Employers’ Liability Act for negligent injury to an employee based on the alleged failure of the defendant to exercise reasonable care in furnishing plaintiff with a safe place to work and on defendant’s failure to inspect a facility appurtenant to a boxcar, and on the failure of the defendant to warn the plaintiff of the defective condition thereof, there was no reliance by the plaintiff upon a violation of the Safety Appliance Act or of the Boiler Inspection Act, ordinary common law rules of negligence as interpreted by the Federal courts are to be applied in determining the question of the defendant’s liability except that the defenses of contributory negligence, assumption of the risk, and fellow-servant negligence are not available to the employer. In such a case where the petition alleges facts to raise a duty on the part of the defendant owing to the plaintiff, and where it shows a violation of that duty and an injury resulting therefrom, it is sufficient as against a general demurrer. Urie v. Thompson, 337 U.S. 163 (69 SC 1018, 93 LE 1282, 11 ALR2d 252). See 35 Am. Jur. 820, et seq., Master & Servant, § 398, et seq. The petition in this case, as finally amended, which alleged that the defendant knew, or in the exercise of ordinary care should have known, of the defective condition which produced plaintiff’s injury because the practice of defendant’s employees, including the plaintiff, of using door fasteners on boxcars as an assist in getting into the boxcars was well known to the defendant, sufficiently alleged a duty and a breach thereof, and the petition was not subject to general demurrer.

[3]*3Decided April 30, 1964 Rehearing denied June 25, 1964. Scott Edwards, Matthews, Maddox, Walton & Smith, John W. Maddox, for plaintiff in error. Lewis, Lewis & Cagle, T. J. Lewis, Jr., Garvis T. Sams, contra.

4. The allegations contained in the plaintiff’s petition sufficiently allege in what respects the plaintiff’s place of work was not reasonably safe, and the grounds of special demurrer directed to the allegations of negligence were not meritorious and were properly overruled.

Judgment affirmed.

Felton, C. J., and Pannell, J., concur.

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Franiojm, Judge.

1. “A petition showing a plaintiff and a defendant, and setting out sufficient to indicate and specify some particular fact or transaction as a cause of action, shall be enough to amend by. The jurisdiction of the court may be shown and the details and circumstances of the particular transaction may be amplified and varied by amendment. If the declaration shall omit to allege facts essential to raise the duty or obligation involved in the cause of action which was evidently originally intended to be declared upon, the omitted fact may be supplied by amendment.” Code Ann. § 81-1302. Under this rule, where, as in this case, the original petition named a plaintiff and a defendant and alleged facts showing that the named plaintiff was an employee of the named defendant railroad company and that while engaged in his employment he sustained an injury as a result of his use of an allegedly defective door fastener on a boxcar, in that while using such fastener as an assist in climbing into the boxcar it gave way and caused him to fall to the ground causing the injuries sued for, but where the petition as originally drawn failed to allege facts which would have put the defendant on notice that plaintiff might use the fastener for this purpose (admittedly an unintended use), such petition, if it was subject to the general demurrer filed thereto, was so only because it omitted to allege the facts essential to raise the duty or obligation of the defendant to know of and warn the plaintiff [2]*2of the defective condition of the door fastener with respect to such unintended use, and the petition was therefore sufficient to authorize an amendment thereto- alleging facts showing such duty. Under these circumstances the objection of the defendant to the allowance of plaintiff’s second amendment to his petition was not well taken.

2. As amended, the petition alleged that the door fastener, in addition to closing the door, was used by the plaintiff and other brakemen and employees of the defendant to enable them to get into boxcars of the type here involved, and “this practice was well known to defendant.” As against a general demurrer this was a sufficient allegation that the defendant knew of the practice of the plaintiff and other brakemen and employees of the defendant to use door fasteners on boxcars of this type as an assist to gaining entry into the boxcar.

3. With respect to an action brought under the Federal Employers’ Liability Act for negligent injury to an employee based on the alleged failure of the defendant to exercise reasonable care in furnishing plaintiff with a safe place to work and on defendant’s failure to inspect a facility appurtenant to a boxcar, and on the failure of the defendant to warn the plaintiff of the defective condition thereof, there was no reliance by the plaintiff upon a violation of the Safety Appliance Act or of the Boiler Inspection Act, ordinary common law rules of negligence as interpreted by the Federal courts are to be applied in determining the question of the defendant’s liability except that the defenses of contributory negligence, assumption of the risk, and fellow-servant negligence are not available to the employer. In such a case where the petition alleges facts to raise a duty on the part of the defendant owing to the plaintiff, and where it shows a violation of that duty and an injury resulting therefrom, it is sufficient as against a general demurrer. Urie v. Thompson, 337 U.S. 163 (69 SC 1018, 93 LE 1282, 11 ALR2d 252). See 35 Am. Jur. 820, et seq., Master & Servant, § 398, et seq. The petition in this case, as finally amended, which alleged that the defendant knew, or in the exercise of ordinary care should have known, of the defective condition which produced plaintiff’s injury because the practice of defendant’s employees, including the plaintiff, of using door fasteners on boxcars as an assist in getting into the boxcars was well known to the defendant, sufficiently alleged a duty and a breach thereof, and the petition was not subject to general demurrer.

[3]*3Decided April 30, 1964 Rehearing denied June 25, 1964. Scott Edwards, Matthews, Maddox, Walton & Smith, John W. Maddox, for plaintiff in error. Lewis, Lewis & Cagle, T. J. Lewis, Jr., Garvis T. Sams, contra.

4. The allegations contained in the plaintiff’s petition sufficiently allege in what respects the plaintiff’s place of work was not reasonably safe, and the grounds of special demurrer directed to the allegations of negligence were not meritorious and were properly overruled.

Judgment affirmed.

Felton, C. J., and Pannell, J., concur.

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Bluebook (online)

137 S.E.2d 752, 110 Ga. App. 1, 1964 Ga. App. LEXIS 530, Counsel Stack Legal Research, https://law.counselstack.com/opinion/southern-railway-co-v-snider-gactapp-1964.

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