Petty v. Atlantic & Birmingham Air-Line Railway Co.

Beck, J. 1. Erom the petition it appears that the plaintiff, a section-hand of the defendant company, was engaged, when he received the injuries complained of, in assisting in the propelling of a hand-car, standing on the car with his hack turned in the direction in which the ear was propelled', and that he was thrown from the car and run over by it when the car itself was thrown from the track by coming in violent collision with a dog upon the track; whereupon he brought suit to recover damages for the injuries sustained, alleging that the injuries were sustained in consequence of the negligence of the foreman of the section-gang, who was upon the same car, and who, being in a position to discover the danger of a collision with the dog, failed and neglected to warn the plaintiff of the danger, and failed to apply the air-brakes to [154] the car, which he could easily have done and thereby have avoided the the collision. Held, that a cause of action was stated, good as against a general demurrer, it being a question for the jury to decide, as a matter of fact, whether or not the plaintiff himself was, at the time of the injury, in the discharge of his duty and free from negligence, and whether the foreman of the section-gang was negligent in the discharge of his duty, as well as whether or not such negligence upon the part of the foreman was the proximate cause of the injuries alleged tó have been received by the plaintiff. Western & Atlantic Railroad Co. v. Bryant, 127 Ga. 77 (51 S. E. 20); 3 Elliott on Railroads, § 1315 (c); Comstock v. Union Pacific Railway Co., 56 Kans. 228 (42 Pac. 724); Hudson v. Hudson, 119 Ga. 637 (46 S. E. 874). Submitted June 18, 1908. Decided February 20, 1909. Action for damages. Before Judge Gober. Cobb superior court. September 7, 1907. N. A. Morris, J. G. Roberts, and H. B. Moss, for plaintiff. Brown & Randolph, J. J. Bowden, and R. S. Parker, contra. 2. The various grounds of the petition were not defective for the reasons assigned in special demurrers thereto, and the demurrers should have been overruled. Judgment reversed. All the Justices concur.