Atlanta, Birmingham & Coast Railroad v. Mullis

Bell, J. 1. In this suit against a railroad company and an individual to recover damages for personal injuries alleged to have been sustained by the plaintiff as a result of the concurring negligence of the defendants, the petition as against the railroad company was fatally defective and subject to general demurrer because it affirmatively appeared from the allegations that the proximate cause of the plaintiff's injuries was not the conduct of the defendant railroad company in placing the piling and beams upon the roadside,' but was the defect in the gear of the truck on which the plaintiff was riding, by reason of which the driver was “without a brake and without any means of controlling the truck,” and was thus unable to “turn it sharply to the left” and avoid a collision with the obstruction so maintained by the railroad company. Perry v. Central Railroad, 66 Ga. 746 (5) ; Beckham v. Seaboard Air-Line Railway, 127 Ga. 550 (2) (56 S. E. 638, 12 L. R. A. (N. S.) 476) ; Gillespie v. Andrews, 27 Ga. App. 509 (2) (108 S. E. 906) ; Artope v. Central of Georgia Ry Co., 38 Ga. App. 91 (143 S. E. 127) ; Morrison v. Columbus Transportation Co., 39 Ga. App. 708 (148 S. E. 276) ; City [693] of Atlanta v. Guice, 41 Ga. App. 146 (152 S. E. 144); Annis v. Georgia Power Co., 42 Ga. App. 754 (157 S. E. 242) ; Corley v. Cobb County, 21 Ga. App. 219 (93 S. E. 1015). Decided August 27, 1931. 2. The petition failed to set forth a cause of action as against the individual defendant, since the action as to this defendant was based upon the relation of master and servant, and the petition alleged no facts to show that the plaintiff as servant did not know and did not have equal means of knowing, and by the exercise of ordinary care could not have known, of the alleged defect in the vehicle. Civil Code (1910), § 3131; Camilla Cotton Oil Co. v. Walker, 21 Ga. App. 603 (3) (94 S. E. 855) ; Bowers v. Louisville & Nashville R. Co., 33 Ga. App. 692 (2) (127 S. E. 667) ; Western & Atlantic Railroad v. Edwards, 40 Ga. App. 66 (148 S. E. 628). 3. The court erred in not sustaining the general demurrers and dismissing the petition as to each defendant. Judgment reversed in each case. In Case No. 20928 Jenkins, P. J., and Stephens, J., concur. In Case No. 20927 Jenkins, P. J., concurs; Stephens, J., dissents. Wilson, Bennett & Pedrick, Kelley & Dickerson, for plaintiffs in error. Harry D. Reed, Parks & Qarrett, contra.