Louisville & Nashville Railroad v. Curry

71 S.E. 1123, 9 Ga. App. 669, 1911 Ga. App. LEXIS 292

Opinion

Hill, C. J.

Under the allegations of the petition the decedent, when killed by the running of the engine and cars, was either an employee or a licensee. Both counts .of the petition show a cause of action, and there was no error in overruling the demurrer filed thereto.

Judgment affirmed.

The second count contained the same allegations, except that, instead of alleging that the locomotive was being operated by employees of the defendants, it alleged that the locomotive was being operated by agents and servants of the Charleston & Western Carolina Bailway Company, and was there with the knowledge and consent of the defendants, it being their custom to allow locomotives of connecting carriers to enter their yards.

The defendants demurred generally to each count of the petition.

Citations in the briefs: For plaintiffs in error: 2 Ga. App. 607; 3 Ga. App. 273; 5 Ga. App. 457 (2) ; 6 Ga. App. 454, 457-8; 7 Ga. App. 342-4; Id. 381; 92 Ga. 89; 101 Ga. 420; 112 Ga. 37; Id. 237; 129 Ga. 388-91; 130 Ga. 675; 131 Ga. 161; 133 Ga. 668; Id. 730; 134 Ga. 371; 108 S. W. (Tex.) 745; 54 C. C. A. 265 (117 ). Contra: 102 Ga. 814, 817; 116 Ga. 644; 127 Ga. 8; 7 Ga. App. 146; 49 Ga. 355; 85 Ga. 482; 90 Ga. 203; 93 Ga. 488.

Joseph B. & Bryan Gumming, J. M. Hull Jr., William K. Miller, for plaintiffs in error. T. F. Harrison, O. II. £ B. S. Cohen, contra.