Every common carrier by railroad shall be liable in damages to any person suffering injury while he is employed by such carrier or, in case of death of such employee, to his or her personal representative, for the benefit of the surviving spouse or child or children of such employee; and if none, then of such employee's parents; and if none, then of the next of kin dependent upon such employee for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier or by reason of any defects or insufficiency, due to the carrier's negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment; provided, however, that there shall be no recovery under this Code section if the person killed or injured brought about his death or injury by his own carelessness amounting to a failure to exercise ordinary care or if he, by the exercise of ordinary care, could have avoided the consequences of the defendant's negligence. The measure of damages in case the injury results in death of the employee shall be that prescribed in Code Sections 51-4-1, 51-4-2, and 51-4-4; provided, however, that parties who may recover under this Code section, Code Sections 34-7-42 through 34-7-44, and Code Section 34-7-46 may sue and recover in their own names in the manner prescribed by Code Sections 51-4-2 and 51-4-4 in case no administrator or executor has been appointed at the time the action is filed. In case death shall result from injury to the employee, the employer shall be liable unless it, its agents, and its employees have exercised all ordinary and reasonable care and diligence, the presumption being in all cases against the employer. If death shall not result from the injury, the presumption of negligence shall be and remain as provided by law in case of injury received by an employee in the service of a railroad company.
(Ga. L. 1909, p. 160, § 1; Civil Code 1910, § 2782; Code 1933, § 66-401; Ga. L. 1986, p. 10, § 34.)
Cross references.- Liability of principal for injuries to agent by other agents generally, § 10-6-39.
Liability of employer for torts of independent employee, § 51-2-4.
Law reviews.- For article, "Actions for Wrongful Death in Georgia," see 9 Ga. B. J. 368 (1947). For article, "Actions for Wrongful Death in Georgia Part Three and Four," see 21 Ga. B. J. 339 (1959). For table covering actions for wrongful death in Georgia, see 10 Ga. B. J. 28 (1947).
JUDICIAL DECISIONSANALYSIS
General Consideration
Constitutionality of section.
- Portion of this section which provided that common carriers by railroad shall be liable to the "next of kin dependent upon" an employee of the common carrier when there was no widow or spouse or child or children of such employee was not unconstitutional on the ground that it conflicted with the equal protection clause of the federal Constitution. Georgia S. & Fla. Ry. v. Adkins, 156 Ga. 826, 120 S.E. 610 (1923).
Intended beneficiaries.
- Right of action to recover for a homicide is not for the benefit of the decedent's estate, or for all of the heirs at law, but is for the benefit solely of certain designated beneficiaries named in the statutes. Cooper v. Cooper, 30 Ga. App. 710, 119 S.E. 335 (1923).
Presumption of employer's negligence.
- Presumption of negligence against the employer "in case death results from injury to the employee," created by this section, was a part of the integral right to recover, and was not alone a rule of evidence. Wallace v. Southern Ry., 10 Ga. App. 90, 72 S.E. 606 (1911).
Action against federal receiver.
- Ga. L. 1909, p. 160 (see now O.C.G.A. Art. 3, Ch. 7, T. 34) was applicable to an action brought, under authority of former Civil Code 1910, § 2788 (see now O.C.G.A. § 34-7-45), by an employee against a federal receiver of a railroad operated partially within the state. Atkinson v. Swords, 11 Ga. App. 167, 74 S.E. 1093 (1912).
Cited in Wrightsville & T.R.R. v. Tompkins, 9 Ga. App. 154, 70 S.E. 955 (1911); Georgia C. & P.R.R. v. Hines, 138 Ga. 713, 76 S.E. 60 (1912); Massee & Felton Lumber Co. v. Georgia & F. Ry., 12 Ga. App. 436, 77 S.E. 366 (1913); Tidwell v. Central of Ga. Ry., 140 Ga. 250, 78 S.E. 898 (1913); Central of Ga. Ry. v. Allen, 140 Ga. 333, 78 S.E. 1052 (1913); Southern Ry. v. Diseker, 13 Ga. App. 799, 81 S.E. 269 (1913); Williams v. Western & A.R.R., 142 Ga. 696, 83 S.E. 525 (1914); Central of Georgia Ry. Co. v. Bessinger, 17 Ga. App. 617, 87 S.E. 920 (1916); Western & A.R.R. v. Smith, 144 Ga. 737, 87 S.E. 1082 (1916); Central of Ga. Ry. v. DeLoach, 18 Ga. App. 362, 89 S.E. 433 (1916); Western & A.R.R. v. State, 23 Ga. App. 225, 97 S.E. 878 (1919); Sherrod v. Atlanta B. & A. Ry., 27 Ga. App. 510, 108 S.E. 908 (1921); Dunbar v. Hines, 152 Ga. 865, 111 S.E. 396 (1922); Davis v. Menefee, 34 Ga. App. 813, 131 S.E. 527 (1926); Atlantic C.L.R.R. v. Solomon, 37 Ga. App. 737, 141 S.E. 917 (1928); Threatt v. American Mut. Liab. Ins. Co., 173 Ga. 350, 160 S.E. 379 (1931); Brooks v. Sessoms, 53 Ga. App. 453, 186 S.E. 456 (1936); Thompson v. Watson, 186 Ga. 396, 197 S.E. 774 (1938); Louisville & N.R.R. v. Crapps, 62 Ga. App. 437, 8 S.E.2d 413 (1940); Southern Ry. v. Roberts, 206 F.2d 508 (5th Cir. 1953).
Damages
Recovery of diminished damages.
- Injured employee is no longer required to show that the employee is free from all blame. In cases in which the negligence of the employee in some degree, less than the lack of ordinary care, contributed to the injury, the employee may recover diminished damages. Southern Ry. v. Perdue, 171 Ga. 134, 154 S.E. 793 (1930).
Pecuniary damages.
- Employee's right of action to recover damages to compensate the employee for expenses, loss of time, suffering, etc., did not survive the employee's death, but the existence of such right in the employee's lifetime did not destroy the dependent's right under the statute to recover for pecuniary damages consequent upon the death; and this section declared two distinct and independent liabilities, resting upon the common foundation of a wrongful injury, but based upon altogether different principles. Dameron v. Southern Ry., 44 Ga. App. 444, 161 S.E. 641 (1931).
Measure of damages.
- Measure of damages for a negligent homicide falling within the purview of former Civil Code 1910, § 2782 (see now O.C.G.A. § 34-7-41) was the "full value of the life of the deceased," which, by reference to former Civil Code 1910, § 4425 (see now O.C.G.A. § 51-4-1), was amplified to mean "the full value of the life of the deceased without deduction for necessary or other personal expenses of the deceased had he lived." Atkinson v. Hardaway, 10 Ga. App. 389, 73 S.E. 556 (1912).
Pleading and Practice
Pleading under section.
- Since this section gave a prior right of action to beneficiaries other than the plaintiff, the petition must negative the existence of any person who had such primary right to sue. Lamb v. Tucker, 146 Ga. 216, 91 S.E. 66 (1916).
When right of action arises.
- Right of action afforded to parents of a railroad employee for homicide of such employee does not arise until the death of the employee; consequently, the cause of action is not barred before expiration of two years from the death of the employee, even though more than two years may elapse between the time of injury which results in death. Dameron v. Southern Ry., 44 Ga. App. 444, 161 S.E. 641 (1931).
Settlement prior to death.
- Settlement by person injured, prior to the person's death, of right of action arising by reason of injury will bar recovery for subsequently resulting death. Dameron v. Southern Ry., 44 Ga. App. 444, 161 S.E. 641 (1931).
Venue of action.
- The venue of a cause of action, under this section, against a railway company for a negligent homicide was in the county in which the fatal injury was inflicted, and not in the county where the injured person may have died. The cause of action inheres in the wrong as consummated by the injury, and not in the death itself. Atkinson v. Hardaway, 10 Ga. App. 389, 73 S.E. 556 (1912).
Prima facie case.
- Plaintiff makes a prima facie case in one action, under this section, by merely showing that the decedent met death while discharging the duties of decedent's employment. Atkinson v. Hardaway, 10 Ga. App. 389, 73 S.E. 556 (1912); Walton v. Georgia, F. & A. Ry., 12 Ga. App. 106, 76 S.E. 1060 (1913), later appeal, 15 Ga. App. 191, 82 S.E. 815 (1914).
In a case in which the employee is injured by a coemployee in a transaction in which the injured employee participated, the employee must, in order to make a prima facie case and change the onus, prove the fact and extent of the employee's injury and must show either that the employee was not negligent, that is, that the employee was not lacking in ordinary care for the employee's own safety and that the employee could not by the exercise of ordinary care have prevented the consequences to oneself of the negligence of a coemployee; or that the coemployee was lacking in ordinary care in doing the act by which the employee was injured. Southern Ry. v. Perdue, 171 Ga. 134, 154 S.E. 793 (1930).
Presumption of employer's negligence.
- When action was brought by the administratrix of a deceased employee, who was engaged as a car inspector of receivers operating a railroad as a common carrier, whose death was caused by being run over by an engine of the carrier, alleged to have been negligently run at an improper speed, without proper signals, and without any lookout, though it was running backward through a railroad yard where many employees were constantly at work, a presumption of negligence arose, under this section. Atkinson v. Alexander, 142 Ga. 124, 82 S.E. 561 (1914).
In an action for the homicide of an employee of a railroad company, under this section, a presumption of negligence against the company did not arise upon a prima facie showing that the deceased met death while discharging the duties of employment. The presumption arises only upon proof that the deceased was killed by the running of the locomotives, or cars, or other machinery of the company, or from an act done by some person in its employment and service. Smith v. Southern Ry., 20 Ga. App. 609, 93 S.E. 166 (1917).
Presumption is rebuttable.- Presumption of negligence against the employer, arising under this section, from death of a railroad employee, is not conclusive, and, if rebutted by uncontradicted and unimpeached evidence, the court should direct the verdict for the defendant. Walker v. Charleston & W.C. Ry., 8 F.2d 725 (5th Cir. 1925).
Jury charge.
- Charge of the trial court to the effect that proof of injury by the operation of railroad cars makes out a prima facie case for the injured party which can only be rebutted by the employer by proof of one of three things: 1) that its officers, agents, or employees were in the exercise of ordinary care on that occasion and were not negligent; or 2) that the person killed brought about their own death or injury by carelessness amounting to a failure to exercise ordinary care; or 3) that the deceased, by the exercise of ordinary care, could have avoided the consequences of the defendant's negligence, was erroneous because the charge had the effect of telling the jury that it can weigh the presumption stated in this section against the evidence. Gainesville M.R.R. v. Floyd, 73 Ga. App. 661, 37 S.E.2d 725 (1946).
RESEARCH REFERENCES
Am. Jur. 2d.
- 32B Am. Jur. 2d, Federal Employers' Liability and Compensation Acts, § 14 et seq.
ALR.
- Intoxication as affecting contributory negligence of one killed or injured at a railroad crossing, 36 A.L.R. 336.
Employer's promise to remedy defect in instrumentality as affecting defense of assumption of risk or contributory negligence, 61 A.L.R. 901.
Constitutionality of statute which imposes liability enforceable in an action at law upon an employer not within workmen's compensation act, for injury to or death of employee, without fault on employer's part, 129 A.L.R. 1124.
Railroad employee injured while engaged in removing weeds, brush, etc., from roadbed or right of way, as within Federal Employers' Liability Act, 143 A.L.R. 481.
Employer's compliance with specific legal standard prescribed by or pursuant to statute for equipment, structure, or material, as defense to charge of negligence, 159 A.L.R. 870.
Liability of railroad for injury to alighting trainman as a result of condition of track or right of way, 172 A.L.R. 594.
Failure of equipment required by Federal Safety Appliance Acts as constituting actionable wrong, 16 A.L.R.2d 654.
Defect in appliance or equipment as proximate cause of injury to railroad employee in repair or investigation thereof, 30 A.L.R.2d 1192.
Finding of decedent's body on or near tracks as creating presumption or inference of railroad's negligence, or as affecting burden of proof relating thereto, 40 A.L.R.2d 881.
Duty of railroad company toward employee with respect to close clearance of objects alongside tracks, 50 A.L.R.2d 674.
Duty of railroad company to prevent injury of employee due to surface condition of yard, 57 A.L.R.2d 493.
Contributory negligence of railroad employee in jumping from moving train or car to avoid collision or other injury, 58 A.L.R.2d 1232.
Master's liability for servant's injury or death caused in whole or in part by act of God, 62 A.L.R.2d 796.
Liability, because of improper loading, of railroad consignee or his employee injured while unloading car, 29 A.L.R.3d 1039.
Right of spouse to maintain action for wrongful death as affected by fact that injury resulting in death occurred before marriage, 69 A.L.R.3d 1046.
Modern development of comparative negligence doctrine having applicability to negligence actions generally, 78 A.L.R.3d 339.
Employer's liability to employee or agent for injury or death resulting from assault or criminal attack by third person, 40 A.L.R.5th 1.