Preston v. Central Railroad & Banking Co.

Bleckley, Chief Justice. The material contents of the declaration are set out in the official report. We think a cause of action was alleged. It does not affirmatively appear on the face of the declaration that the plaintiff could have known more than he did know by the use of ordinary diligence. He alleges that he was ignorant of the dangerous condition of the track, and if he ought to have been better informed of it than he was, his duty in that respect is matter of defence. It does not appear how long he had been engaged in the work, or what his opportunities had been, before he was injured, to ascertain the dangers to which the bad condition of the track exposed him. That it was the duty of the company to have a fit and proper place for the work in which he was employed, there can be no doubt. Gulf Ry. Co. v. Rediker, 2 S. W. Rep. 513; Snow v. Housatonic R. R. Co., 8 Allen, 441; Lewis, adm’r, v. St. L. & Iron Mountain R. R. Co., 59 Mo. 495; H. & T. C. Ry. Co. v. McNamara, 59 Tex. 255. The court erred in sustaining the demurrer and dismissing the action. Judgment reversed.