Green v. Brinson Railway Co.

85 S.E. 931, 16 Ga. App. 639, 1915 Ga. App. LEXIS 173

• Court: Court of Appeals of Georgia
• Decided: August 2, 1915
• Docket: 5974
• Status: Published

Opinion

Russell, C. J.

It being alleged in the petition that the plaintiff did not know of the defective conditions of the locomotive operated by him as an engineer of the defendant company, to which his injuries were directly attributed, and that his means of knowledge were not equal to those of the master, and it further appearing, from the allegations of the petition, that in order to make the necessary repairs on the locomotive, it was necessary for him to go under the engine, the movement of which caused the injuries complained of, and this movement, as alleged, being traceable to the negligence of the fireman, in disobedience of the engineer’s orders and in disregard of the fireman’s duty,.and questions of negligence and diligence being peculiarly for solution by the jury, a cause of action was set forth, and the trial judge erred in sustaining a general demurrer and dismissing the action. Judgment reversed.

Brinson <& Ilatoher, W. D. Tutt, Isaac 8. Peebles Jr., for plaintiff,

cited: Collins v. Sou. Ry. Co., 124 Ga. 853; Civil Code (1910), § 4426; Augusta &c. Ri Co. v. Dorsey, 68 Ga. 228 (1); Murray v. Boston R. Co., 101 Am. St. Rep. 660 (54 Atl. 289); Hubbard v. Macon Ry. Co., 5 Ga. App. 223; Conners v. Durite, 156 Mass. 163 (30 N. E. 559); 34 Am. Dig. Cen. Ed. 1673, sec. 1017(D); San Antonio R. Co. v. Lindsey, 27 Tex. Civ. App. 316 (65 S. W. 668); Ocean 8. Co. v. Matthews, 86 Ga. 423; Waycross Lumber Co. v. Guy, 89 Ga. 148.

Hitch & Denmark, H. J. Fullbright, for defendant,

cited: Civil Code (1910), §§ 3130, 3131; Stewart v. Seaboard Ry., 115 Ga. 624; Sou. Cotton Oil Co. v. Skipper, 125 Ga. 368; Banks v. Schofield’s Sons Co., 126 Ga. 667; Cen. Ry. Co. v. Brandenburg, 129 Ga. 115; Freeman v. Savannah Flee. Co., 130 Ga. 449; Wallace v. Sou. Ry. Co., 10 Ga. App. 90; Butler v. Atlanta Buggy Co., 10 Ga. App. 175; Flury v. Hightower Co., 132 Ga. 300; Sou. Ry. Co. y. Taylor, 137 Ga. 707; Ga. Ry. &c. Co. Y. White, 136 Ga. 846; Howard y. Cen. Ry. Co., 138 Ga. 537; Civil Code, § 2782; Wrights-ville &c. R. Co. y. Tompkins, 9 Ga. App. 154; Cen. Ry. Co. V. Mosely, 112 Ga. 914; Moore v. King Mfg. Co., 124 Ga. 576.