Strange V. Wrightsville & Tennille Railroad , 133 Ga. 730 ( 1910 )

Lumpkin, J.

(After stating the foregoing facts.) The plaintiff’s husband was an engineer in' the employment of the defendant. According to her allegation, it was his duty to handle the engine and move the train from the place where it had been made up to ■the track of the defendant and on to its destination. According to the testimohy of his son, he was the engineer of that engine, “and was to run it that day, but at the time my father was hurt he was not running the engine.” The master mechanic was running it. The first intimation in the evidence as to the position of the engineer \was that he was not on the engine proper, but was on top of the wood, which was piled in the tender, and on one side of it. The plaintiff recognized that this was not the normal place for an engineer, and alleged, in her petition, that he was subject to the orders of the master mechanic; that while he was in his proper place and at his post of duty, the master mechanic took charge of the engine and took his place as engineer; that by the command of the master mechanic, and with his knowledge, her husband got on •the tender of the engine for the purpose of placing safely a piece of wood, which was about to fall from it to the track, and which might derail the train; and that after the wood had been properly placed, the master mechanic called to him and instructed him to return to the engine. It was not denied that the engineer was subject to the orders of the master mechanic; but the other allegations as to why he went upon the tender were not admitted. No evidence was introduced to show any command on the part of the master mechanic for the engineer to go upon the tender and handle the wood there; nor was any necessity shown for him to do so, or any duty on his part to be at that place. The evidence did not show whether or not there was a fireman on the engine. In returning from the tender to the engine, while it was going around a curve, at a speed of about fifteen miles an hour, he attempted to get down from the tender to the engine on the inner side of the curve. The master mechanic, who was running it, shut off the steam, wholly or partially, apparently because the engine was slipping. The witness thought, from the motion of his hand, that he shut it off entirely. The tender and engine came together on the inside of the curve, and the plaintiff’s husband received an injury which resulted in his death. It is clear that he would not have been injured if he had remained on his engine, instead of going upon the wood in the tender. The plaintiff’s own allegations and evidence indicated that this was not his usual and proper place. She alleged a reason why he went upon ■the tender, but failed entirely to introduce any proof on' that subject. Under the plaintiff’s own showing the case falls within the ruling in Atlanta and Charlotte Air-Line Ry. Co. v. Ray, 70 Ga. 674 (4). See also Chattanooga Southern R. Co. v. Myers, 112 Ga. 237 (37 S. E. 439). Having been injured 'while seeking to return to the engine from the tender, where the evidence failed to show he had any duty or reason to be, and it being evident that except for the fact that he was endeavoring to make this alteration of position while the engine was moving around a curve he would not have been hurt, a nonsuit was properly granted.

Judgment affirmed.

All the Justices concur, except Evans, P. J., disqualified.