Callahan v. Western & Atlantic Railroad , 137 Ga. 726 ( 1912 )

Beck, J.

(After stating the foregoing facts.)

1. The petition stated a cause of action against the Southern Eailway Company, sufficient to withstand an oral motion to dismiss in the nature of a general demurrer. No special demurrer was filed, so far as appears from the record, requiring the plaintiff to show specifically whether he actually jumped or fell from the car upon which he was standing, and which was the leading car in the string of cars that was being pushed by the Western & Atlantic Eailroad Company’s locomotive; but the allegations of the petition show that the plaintiff’s last position upon the car, when he jumped or fell therefrom, was one of peril, and an emergency requiring quick and prompt action on his part had been brought about by the negligence on the part of the employees of the Southern Eailway Company and the negligence of the coemployees of the plaintiff upon the latter’s train. The Southern Eailway engine was wrongfully on the track upon which it was approaching the plaintiff’s train; the trainman on the plaintiff’s train, according to the allegations of the petition, was negligent in not receiving ■ the signals which the plaintiff first gave, and in failing to transmit those signals to the engineer; and the engineer of this train, who finally received the signals, was negligent in too suddenly and violently applying brakes, which resulted in a break of the plaintiff’s train; in consequence of which the car upon which plaintiff was standing, and others, moved on towards the approaching engine of the Southern Eailway Company. If the allegations are true, the motion of the car upon which plaintiff was standing, towards the approaching locomotive, was the result of negligence, and the approaching of the locomotive of the Southern Eailway Company under- the circumstances was wrongful and negligent. Thus the concurring negligence of the employees of the Southern Eailway Company who were operating the locomotive, and the negligence of the trainman and the engineer that caused the breaking of plaintiff’s train, brought a moving locomotive and cars disconnected from the control of their locomotive to a point where collision was apparently imminent. The petition sets forth facts showing an emergency; and if, acting under necessity brought about by this apparent emergency, the plaintiff, being in a position of apparent peril, jumped from the ear, or jumped because, as it is alleged, he became “unbalanced” on the edge of the car, it can not be said that the negligence of the employees operating the approaching locomotive was not the proximate cause of the plaintiff’s injury received in falling or jumping from the car. The fact that the negligence of others contributed to the existence of the emergency did not have the effect of relieving the Southern Eailway Company of the consequences of the negligence of its employees. Consequently it was error for the court to dismiss the case, upon general demurrer, as to the Southern Eailway Company.

2. After a careful consideration of the entire evidence, we are of the opinion that the question of the liability of the Western & Atlantic Bailroad Company was one for decision by the jury under the. evidence and proper instructions from the court upon the issues involved, and that it was error to grant a nonsuit.

Judgment reversed.

All the Justices concur, except Hill, J., not presiding.