Corley v. Coleman & Ellison

Cobb, J. The plaintiff sued the defendants for damages alleged to have resulted to her from the homicide of her husband. The court dismissed her petition upon a general demurrer, and to this ruling she excepted. The substance of the allegations of the petition is set forth in the official report which precedes this opinion. As against a general demurrer the petition set forth a cause of action. It alleged that there was standing within twelve feet of the track a tree which, on account of its condition, brought about by decay and the fact that it had been boxed for turpentine, was a constant menace to the safety of the employees of the defendants, who in the course of their employment were compelled to ride upon the railroad, and that the plaintiff’s husband was riding thereon at the time of his death. The petition distinctly alleges that while the condition of the tree was such as to imperil the lives and safety of the employees upon passing trains, the fact that it was in such a condition was not known to the plaintiff’s husband, and could not have been discovered by him by merely passing by the tree. It was further alleged that it was no part of the duty of the plain [996] tiff’s husband to make any inspection as to the condition of the right of way or the territory adjacent thereto. It was argued that there was no allegation that the tree was upon the right of way of the defendants. It is not material to the case whether the tree was located upon the right of way of the defendants or upon the property of an adjacent owner. If the tree was in the condition alleged in the petition, it was the duty of the defendants to cause it to be removed in some lawful way, even if it was actually located upon the property of another person, or at least to have given warning, to their employees of the danger with which they were confronted in riding upon the cars provided for them. When the petition is-taken as a whole, it simply presents a case where an employee has-sustained injury as a result of a danger which was well known to the employer but was unknown to the employee, and he, Tinder the circumstances alleged, was under no duty to have made the inspection which was necessary to discover the danger; while the employer was under a duty to his employee, not -only to have made the inspection which would have resulted in a discovery of the danger, but also to have removed the same. The court- erred in dismissing the petition on the demurrer filed thereto. Judgment reversed. All the Justices concurring.