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December 6, 1963

Janet Marie CUDDY, Administratrix of the Estate of James R. Cuddy, Jr., Deceased, Plaintiff,

The opinion of the court was delivered by: FOLLMER

This case was tried to a jury and resulted in a verdict for plaintiff in the sum of $ 40,000.00. The matter is now before the Court on motion of defendant for judgment notwithstanding the verdict or for a new trial.

The Complaint alleges that decedent, Cuddy, while in the employ of defendant as an engineman and while in and about the premises of defendant, on or about November 15, 1958 was shot and killed by one James T. Haney, likewise an employee of defendant. The Complaint further alleges that the death of said decedent was due to the negligence of defendant in 'hiring and maintaining in its employ, a man known to be difficult to get along with, dangerous and vicious, and who was known to have a specific, notorious tendency to do bodily harm to others, all of which facts the defendant knew and did know for a long time prior the decedent's murder.'

 The Court refused defendant's motion to dismiss the action because the Complaint failed to state a claim against defendant upon which relief could be granted under the Federal Employers' Liability Act.

 At a chamber conference immediately before the opening of the case to the jury plaintiff was permitted to amend the Complaint by adding two paragraphs as follows, to wit:

 '17. The defendant was negligent in that after receiving information that some of its employees were carrying guns while working on the railroad during working hours, it gave no warning whatsoever to its employees of this situation.'

 In her brief contra the current motion, plaintiff states:

 '* * * The plaintiff did not introduce evidence to show that James T. Haney was a man of known dangerous and vicious character. The plaintiff did not argue this point as a ground of liability to the jury. The plaintiff did not place this issue in front of the jury or call it to the jury's attention at any time during the trial or in the summation of counsel for the plaintiff to the jury prior to their deliberations. (Plaintiff's proof and argument to the jury was simply and clearly that the defendant, after having received information to the effect that its employees were carrying loaded firearms on its premises during the hunting season did not take such steps as a prudent railroad should have taken in order to alleviate the great danger that this situation presented, did not take adequate and proper steps to protect its employees, took no steps to warn its employees that their fellow employees were carrying loaded firearms, and passed a rule forbidding the carrying of firearms by its employees while on freight trains, which was wholly inadequate and imprudent in the circumstances to alleviate the great existent danger.'

 There having been no testimony educed before the jury on the question of Haney's known dangerous and vicious character, there remained for the jury's consideration only the question of the negligence of defendant in connection with the use of firearms.

 The testimony in this case is that Haney had completed his shift at work and Cuddy, the deceased, was expected to report for work at the next shift. Furthermore, the testimony of decedent's father was uncontradicted that all decedent had to do at the moment was to stand at a street corner in an area used by the railroad employees to go to and from their work; that in reply to a question from the father as to whether that was all he had to do, decedent replied, 'Right now it is', and that he wanted to talk to Haney. Just about that time Haney appeared and the altercation took place. Decedent slapped Haney and then Haney shot decedent.

 Granted that Cuddy was on his way to work, he certainly was under no compulsion so far as his work was concerned to stop and await the arrival of Haney. The evidence is clear and undisputed that decedent had stopped on his way to work for the express purpose of talking to Haney. It is also clearly undisputed that in the altercation which followed the confrontation decedent was the aggressor. Cuddy's deviation was not for any reason related to his employment but for a purely personal one.

 In General Accident Fire & Life Assurance Corp., Ltd. v. Prescott, 80 Ga.App. 421, 56 S.E.2d 137, at page 138, the Court clearly and forcefully disposed of the temporary deviation argument as follows:

 'Where an employee breaks the continuity of his employment for purposes of his own and is injured before he brings himself back into the line of his employment, the injury does not arise 'out of and in the course of' his employment * * *.'

 I fully concur in and adopt as my own the following statement of the Court in Quirk v. New York, C. & St. L.R. Co., 7 ...

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