Louisville & Nashville Railroad v. Hood , 149 Ga. 829 ( 1920 )

Beck P. J.

1. In the act of Congress known as the Federal employers’ liability act, approved April 22, 1908, and entitled “An act relating to the liability of common carriers by railroad to their employees in certain cases,” it was enacted, after describing the carriers by railroad to which the terms of the act are applicable, “That in all actions hereafter brought against any such common carrier by railroad under or by virtue of the provisions of this act, 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.” In a case involving the provisions of the act quoted this court said: “The statute contains three propositions which stand out in bold relief: the first is, that a carrier is liable for the injury or death of an employee resulting in part from the carrier’s negligence; secondly, the employee’s contributory negligence does not cut off the right of action; and, thirdly, there is to be a diminution of damages in proportion to the employee’s negligence. It would seem that the clear intent of Congress was to allow some damages for every injury or death caused by the carrier’s negligence.” Southern Railway Co. v. Hill, 139 Ga. 549 (77 S. E. 803). See also L. & N. R. Co. v. Paschal, 145 Ga. 521 (89 S. E. 620). And it has been held by the Supreme Court of the TJhited States that it is only where the act or omission on the part of the plaintiff is the sole cause — when the defendant’s act is no part of the causation, that the defendant is free from liability under the act. See Grand Trunk Ry. Co. v. Lindsay, 233 U. S. 42, 34 Sup. Ct. 581, 58 L. ed. 838, Ann. Cas. 1914C, 168). And it would seem a fair statement of the rule to say that unless the act or omission of the plaintiff is the sole cause of the injury, his act or omission must be considered as contributory negligence, and contributory negligence does not defeat a recovery. See Bichey on Federal Employers’ Liability Act, 39 et seq.; 18 B. C. L. 826 et seq. And where a railroad company has been guilty of negligence that has a casual relation to the plaintiff’s injury, the plaintiff may recover even though he has been guilty of contributory negligence in regard, thereto, and that contributory negligence was of such a character and so related to the injury received that if the plaintiff had exercised ordinary care he might have avoided the consequences of the defendant’s negligence. If the defendant was negligent, and negligent in such a way as to bring about or contribute to the injury, the fact that the plaintiff failed to exercise diligence, when under, the circumstances by the exercise of diligence he might have avoided the injury, in no wise makes his negligence the sole cause of the injury. But where the injury was the joint result of the negligence of the defendant railroad and of the plaintiff, there may be a recovery by the plaintiff, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to the employee. In briefs submitted to this court counsel for both the defendant in error and the plaintiff in error have urged that this first question is not involved in this case, under the pleadings and the evidence. But the question propounded is a question of law, and such as the Court of Appeals is authorized, by the act creating that court and defining its jurisdiction and right to propound questions to this court, to ask instructions thereon; and where such a question is propounded, it is the duty of this court to answer it without looking to the record or pleadings and the facts to discover whether the question is there involved; though this court might decline to answer a question of law if it appears from. the other questions propounded in connection therewith that it could not be involved in the decision of the ease before the Court of Appeals.

2. This court can not undertake to answer the other three questions. After giving them careful consideration we are satisfied the questions are not of the character which the Court of Appeals is authorized to certify to this court. Question number 2 is a question of fact, and question 3 is a question of mixed fact and law, depending to a considerable extent upon the proper answer to question 2. Question 4 contains various mixed questions of fact and daw. In the case of Lynch v. Southern Express Co., 146 Ga. 68 (90 S. E. 527), it was said: “With a view of preserving uniformity of decision, the constitution provides for the certifying of constitutional questions to the Supreme Court, and further provides that fThe Court of Appeals may at any time certify to the Supreme Court any other question of law concerning which it desires the instruction of the Supreme Court for proper decision; and thereupon the Supreme Court shall give its instruction on the question certified to it, which shall be binding on the Court of Appeals in such case. The manner of certifying questions to the Supreme Court by the Court of Appeals, and the subsequent proceedings in regard to the same in the Supreme Court, shall be as the Supreme Court shall by its rules prescribe, until otherwise provided by law.’ Constitution of Georgia, art. 6, sec. 2, par. 9 (Civil Code of 1910, § 6506). Two features stand prominent in this constitutional provision: one is that the question certified is to be one of law; and the other is that the purpose of the certification is to settle the question of law for application by the Court of Appeals in a ‘proper decision’ of the case by them. There can be no doubt that the words, ‘question of law,’ as used in the constitution,' considered abstractly or in connection with the context, were not intended to embrace questions of fact, or mixed questions.of law and fact; the manifest object being to submit t.o the Supreme Court a definite question of law.” And in connection with this discussion the writer of the opinion, Presiding Justice Evans, referring to decisions rendered by the Supreme Court of the United States touching similar questions, said: “A similar question was presented to the United States Supreme Court in the construction of an act of Congress which authorized the judges of the Circuit Court of Appeals in any civil suit or proceeding before it, where they were divided in opinion, to certify to the Supreme Court the point upon which they so disagreed. The Supreme Court of the United States, speaking through Mr. Justice Gray, held that each question certified must be a distinct question or proposition of law clearly stated, so that it could be definitely answered without regard to, other issues of law or of fact in the case. He said: ‘The points certified must be questions of law only, and not questions of fact, or of mixed law and fact— “not such as involve or imply conclusions or judgment by the court upon the weight or effect of testimony or facts adduced’in the cause.” . . The whole ease, even when its decision turns upon matter of law only, can not be sent up by certificate of division.’ ” Citing the following cases: Jewell v. McKnight, 123 U. S. 426 (8 Sup. Ct. 193, 31 L. ed. 190); Chicago &c. Ry. v. Williams, 205 U. S. 444, 452 (27 Sup. Ct. 559, 51 L. ed. 875); The Flomina, 212 U. S. 354 (29 Sup. Ct. 363, 53 L. ed. 546, 15 Ann. Cas. 748); U. S. v. Mayer, 235 U. S. 55 (35 Sup. Ct. 16, 59 L. ed. 129). The ruling made in the Lynch case, supra, has been followed in subsequent decisions by this court. The decision in that case was rendered under the provisions of the amendment to the constitution adopted in 1906, under which the Court of Appeals was created and established. The language of the amendment of 1906 allowing certified questions is as follows: “The Court of Appeals may at any time certify to the Supreme Court any other question of law concerning which it desires the instruction of the Supreme Court for proper decision; and thereupon the Supreme Court shall give its instruction on the question certified to it, which shall be binding on the Court of Appeals in such case.” In the amendment to the constitution, adopted in 1916 (Acts 1916, p. 19), wherein the jurisdiction of the Supreme Court and of the Court of Appeals is defined, it was declared, that “where a case is pending-in the Court of Appeals and the Court of Appeals desires instruction from the Supreme Court, it may certify the same to the Supreme Court, and thereupon a transcript of the record shall be transmitted to the Supreme Court, which, after having afforded to the parties an opportunity to be heard thereon, shall instruct the Court of Appeals on the question so certified, and the Court of Appeals shall be bound by the instructions so given.” The language of these two provisions'as to the certification of questions to the Supreme Court for instruction is somewhat different, but we do not think it was the purpose of the legislature proposing this latter amendment to the constitution to change the character of the questions which might be certified to the Supreme Court. For, although the amendment of 1916 which we are considering declares that where a ease is pending in the Court of Appeals and that court desires instructions from the Supreme Court it may certify the same to the .Supreme Court, etc., that language must be, considered and construed in connection with the further provision immediately following, which is, that the Supreme Court, “after having afforded to the parties an opportunity to be heard thereon, shall instruct the Court of Appeals on the question so certified.” The language of the amendment of 1906 is substantially the same, which declares that “the Supreme Court shall give its instruction on the question certified to it.” Therefore the decision in the Lynch case, which we have set forth at some length above, is as applicable now to the matter of questions certified by the Court of Appeals as it was when rendered. It follows from what is said above that this court can not entertain for decision and for the purpose of instructing the Court of Appeals thereon the last three questions.

All the Justices concur.