Wadley Southern Railway Co. v. Durden

Hill, J. The foregoing statement of facts, which substantially sets forth the plaintiff’s cause of action, was subject to the demurrer filed, and the court erred in not sustaining it/ As this ruling is controlling, the other assignments of error need not be considered. Assuming that the plaintiff was a licensee upon the tracks of the defendant company as alleged, the defendant owed to him the duty of furnishing a safe track on which he and his employer might run its cars and perform the work incident thereto. See Killian v. Augusta & Knoxville R. Co., 79 Ga. 234 (4 S. E. 165, 11 Am. St. R. 410). According to the allegations of the petition, on the day the injury occurred the engineer of the engine on which the plaintiff worked as fireman was backing his engine down the track, and the plaintiff had gone down the track to fix a link on the water-tank to which he intended to couple the engine. After the link was fixed the plaintiff went towards the engine to fix the pin on the engine so that it would couple to the tank, and when in about thirty feet of the engine, which was slowly backing, the heel of plaintiff’s shoe was caught between a cross-tie and an iron bar which guides the rail in throwing the switches; and being unable to extricate himself, the plaintiff began to cry aloud to the engineer to stop the engine, but the latter, not hearing or seeing him, failed to stop the engine, and it ran over the plaintiff’s leg, causing the injury. It was alleged that between the cross-tie and the iron bar there was a washout, or hole dug out, and on account of this hole the heel of plaintiff’s shoe was caught as above described, and he [365] was injured; and it was alleged that if there had been no washout, or hole dug out, and the track had been kept smooth and level, the accident would not have happened and the plaintiff would not have sustained the injury. We do not think that these allegations show that the defendant was so lacking in the exercise of ordinary care and diligence in furnishing a safe track as to subject it to damages where injury resulted from a condition as set forth in the petition. Eelatively to the plaintiff, the defendant was not under a duty to keep a perfectly smooth and level track and road-bed. At most, its duty to him was not more than to use ordinary care to keep a reasonably safe track and road-bed. There was no allegation that the bar or cross-tie was in any way defective, or that there was any negligence in regard to their construction or maintenance. The case sought to be made by the plaintiff turned upon the fact that there was a hole, which he alleged in the alternative was either dug out or washed out, and in some way the heel of his shoe got caught between a cross-tie and an iron bar by reason of this hole. There was no allegation that the defendant, or its agents, made or dug the hole; nor was there any allegation as to its character. So that, on the first branch of the alternative allegation, no ease was made out. On the other branch of such allegation, as to the hole having been washed out, there was no allegation as to its extent or character, or how long it had existed. Even if the allegations by which it was sought to impute notice to the defendant were sufficient to withstand a general demurrer, nevertheless there was a failure to show negligence on the part of the defendant, relatively to the plaintiff, in not changing the status. The allegations entirely fail to show that the mere existence of some kind of a hole, or washout, along the defendant’s track constituted negligence relatively to the plaintiff. In a vague sort of way it is said that the heel of his shoe would not have caught but for the hole; but the allegations are entirely insufficient to show negligence on the part of the defendant as to the plaintiff, with damage proximately resulting therefrom. Judgment reversed. All the Justices concur.