GA Code § 34-7-42 (2021)
2021 Georgia Code|Title 34 - Labor and Industrial Relations|Chapter 7 - Employment Generally; Employer's Liability|Article 3 - Employer's Liability for Injuries to Railroad Employees|§ 34-7-42. Contributory Negligence of Employee

 In all actions brought against any common carrier by railroad under or by virtue of any of the provisions of this Code section, Code Section 34-7-41, 34-7-43, 34-7-44, or 34-7-46 to recover damages for personal injuries to an employee or for death of an employee where such injuries have resulted in death, the fact that the employee may have been guilty of contributory negligence, not amounting to a failure to exercise ordinary care, 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; provided, however, that no such employee who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation by the common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee.   (Ga. L. 1909, p. 160, § 2; Civil Code 1910, § 2783; Code 1933, § 66-402.)   Cross references.   - Effect of failure of plaintiff to avoid consequences of defendant's negligence generally, § 51-11-7.   JUDICIAL DECISIONS   Constitutionality of section.    - Section was constitutional. Georgia C. & P.R.R. v. Hines, 138 Ga. 713, 76 S.E. 60 (1912).   Applicability of section.    - Section referred only to cases involving the injury to or death of an employee of a common carrier by a railroad. Willis v. Jones, 89 Ga. App. 824, 81 S.E.2d 517 (1954).   Effect of employee's contributory negligence.    - Under this section, contributory negligence amounting to a failure to exercise ordinary care will absolutely bar recovery, while contributory negligence of a less degree will diminish the recovery. Seaboard Air-Line Ry. v. Hunt, 10 Ga. App. 273, 73 S.E. 588 (1912).   Comparative negligence.   - Comparative negligence doctrine denies any recovery if the plaintiff's negligence equals or exceeds the defendant's. Thus, if each party is 50 percent at fault, there can be no recovery. But should the plaintiff's negligence be 49 percent, the plaintiff is entitled to recover 51 percent of the plaintiff's damages. Southern Ry. v. Brunswick Pulp & Paper Co., 376 F. Supp. 96 (S.D. Ga. 1974).   Last clear chance doctrine.   - If both the plaintiff and the defendant are negligent, the latter can be found solely liable for all the damage if the defendant had a last clear chance to avoid the injury and did not exercise ordinary care. Southern Ry. v. Brunswick Pulp & Paper Co., 376 F. Supp. 96 (S.D. Ga. 1974).   Servant's right of recovery barred.    - Selection of an unsafe or a dangerous method of performing work when a reasonably safe method is apparent will bar a servant's right of recovery in the event the servant is injured. Gay v. Osteen, 56 Ga. App. 224, 192 S.E. 539 (1937).   Erroneous charge of section.    - Use of the word "may" for "shall" by the court charging this section to the jury was error. Central of Ga. Ry. v. Brown, 138 Ga. 107, 74 S.E. 839 (1912).    Cited in Georgia R.R. v. Hunter, 12 Ga. App. 294, 77 S.E. 176 (1913); Massee & Felton Lumber Co. v. Georgia & F. Ry., 12 Ga. App. 436, 77 S.E. 366 (1913); Atkinson v. Boggs, 16 Ga. App. 738, 86 S.E. 62 (1915); Louisville & N.R.R. v. Layton, 243 U.S. 617, 37 S. Ct. 456, 61 L. Ed. 931 (1917); Central of Ga. Ry. v. Hartley, 25 Ga. App. 110, 103 S.E. 259 (1920); Central of Ga. Ry. v. Lindsey, 28 Ga. App. 198, 110 S.E. 636 (1922); Robinson v. State, 158 Ga. 47, 122 S.E. 886 (1924).   RESEARCH REFERENCES   Am. Jur. 2d.   - 32B Am. Jur. 2d, Federal Employers' Liability and Compensation Acts, §§ 7, 28 et seq., 69.   ALR.    - Right of servant to rely upon performance by another of the duty, equally incumbent upon himself, of complying with the "blue flag rule," 8 A.L.R. 870.    Liability for injury to window washer, 28 A.L.R. 622.    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.    Construction and effect of comparative negligence rule where there are more than one defendant, or where negligence of nonparties contributes to the injury, 92 A.L.R. 691.    Statute abolishing or modifying contributory negligence rule in certain class of cases or situations, as denial of equal protection of the laws, 142 A.L.R. 631.    Liability of railroad for injury to alighting trainman as a result of condition of track or right of way, 172 A.L.R. 594.   Contributory negligence of railroad employee in jumping from moving train or car to avoid collision or other injury, 58 A.L.R.2d 1232.   Contributory negligence of adult struck by train while walking or standing beside railroad track, 63 A.L.R.2d 1226.   Comparative negligence rule where misconduct of three or more persons is involved, 8 A.L.R.3d 722.   Premises liability: proceeding in the dark across interior premises as contributory negligence, 28 A.L.R.3d 605.   Liability, because of improper loading, of railroad consignee or his employee injured while unloading car, 29 A.L.R.3d 1039.   Retrospective application of state statute substituting rule of comparative negligence for that of contributory negligence, 37 A.L.R.3d 1438.