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The Georgia Pacific Railway Company v. Richardson
Simmons, Justice. Richardson brought his action against the Georgia Pacific Railway Company for personal injuries. The declaration is fully set out in the official report of this case, and it is unnecessary to recopy it in this opinion. The defendant demurred to the declaration on the ground that it did not set out a sufficient cause of action. The demurrer was overruled, and the defendant excepted. We think the court erred in overruling this demurrer.
We have carefully read this declaration and the amendment thereto, and do not think that any sufficient cause of action is set out against the defendant. The plaintiff, according to the declaration, went upon a trestle on the defendant’s road, in the night-time, about the time he knew the defendant’s train would come along and pass 729 over the trestle.
He alleges in the declaration that if the engineer had blown his whistle, he could have fallen between the cross-ties and hung by his hands until the train passed, and that the engineer and fireman could have seen him by the exercise of ordinary diligence. He does not allege what he did to avoid the injury to himself.
It may be inferred, however, from the allegations in the declaration, that he could have seen the engine approaching much sooner than the engineer could have seen him, and that he made no effort to avoid the injury. There was no public crossing near this trestle which required the engineer to blow his whistle. There was no allegation in the declaration that the engineer or fireman did see the plaintiff before he was injured. It does not allege that the neglect on the part of the engineer was wilful.
We therefore rule that there are no such allegations in the plaintiff’s declaration as would authorize him to recover against the defendant in case he could establish all the allegations therein by proper testimony; and we think the averments therein show that he was guilty of gross negligence and carelessness, and that the court below should have sustained the demurrer. Judgment reversed.