Alexander v. Atlantic Coast Line Railroad

100 S.E. 226, 24 Ga. App. 171, 1919 Ga. App. LEXIS 476

• Court: Court of Appeals of Georgia
• Decided: September 18, 1919
• Docket: 10160
• Status: Published

Opinion

Stephens, J.

The petition, construed most strongly against the pleader, failed to set out a cause of action, and the court did not err in dismissing it on general demurrer.

Judgment affirmed.

Broyles, P. J., and Bloodworth, J., concur.

The defendant demurred to the petition specially and generally; the court overruled the special grounds and sustained the general demurrer and dismissed the petition; and the plaintiff excepted. In the brief of counsel for the defendant it is contended that under the allegations of the petition the plaintiff must be treated as a mere volunteer or a licensee, and not as an employee of the railroad company; that it does not appear that he was on the engine as an apprentice or to learn the duties of an engineer, or that the master mechanic had authority to employ him or to permit him to ride on the engine; that the presence of the coal on the step of the engine and the condition of the road-bed did not constitute negligence as to the plaintiff; that his means of knowing of the coal on the step were equal to or better than those of the defendant; that he assumed the risk; that relatively to him the defendant was not under a duty to keep a level road-bed; that the alleged negligence was not the proximate cause of the injury; and that the case falls within the principle of mere accident.

Oliver & Oliver, for plaintiff,

cited: Ga. Railroad v. Hunter, 9 Ga. App. 383; So. Ry. Co. v. Puckett, 16 Ga. App. 551; Fenelon v. So. Ry. Co., 143 Ga. 26; Choctaw &c R. Co. v. Tennessee, 191 U. S. 334 (48 L. ed. 201).

Bennet, Twitty & Reese, Wilson & Bennet, for defendant,

cited: Civil Code (1910), §§ 3476, 3131; 1 Labatt, M. & S., 9, 16-17, 46; Wadley So. Ry. Co. v. Durden, 142 Ga. 361; Cen. of Ga. Ry. Co. v. Mullins, 7 Ga. App. 381; Naylor v. Chickamauga Quarry &c. Co., 19 Ga. App. 714; Bird v. Savannah Electric Co., 16 Ga. App. 453; Stewart v. S. A. L. Ry., 115 Ga. 624; Lee v. Cen. R. Co., 86 Ga. 231; East Tenn. &c. Ry. Co. v. Reynolds, 93 Ga. 570; Harriman v. Chicago &c. R. Co., 50 L. R. A. (N. S.) 552; Black, Accident Cases, sec. 8; Nelson v. So. Ry. Co. (N. C.), 86 S. E. 1036, and cit.; 3 Labatt, M. & S. (2d ed.), sec. 919; Virginia &c. Co. v. Kiser, 105 Va. 695; Persinger v. Alleghany &c. Co., 102. Va. 350.— Ga. R. v. Hunter, So. Ry. Co. v. Puckett, and Fenelon v. So. Ry. Co., supra, distinguished.