Ayers v. Louisville & Nashville Railroad , 5 Ga. App. 454 ( 1909 )

Powell, J.

(After stating the foregoing facts.)

Pleadings are construed most strongly against the pleader. Athens Mfg. Co. v. Rucker, 80 Ga. 291 (4 S. E. 885); Smith v. E. & W. Ry. Co., 84 Ga. 183, 186 (10 S. E. 602); C. & W. C. Ry. Co. v. Augusta Stockyard Co., 115 Ga. 70 (41 S. E. 598). And if the pleadings are capable of two constructions, the one most unfavorable to the pleader must obtain. Evans v. Collier, 79 Ga. 315 (4 S. E. 264); C. & W. C. Ry. Co. v. Augusta Stockyard Co., supra. The plaintiff must show, by well pleaded allegations, that the negligence of the defendant was the proximate cause of the injury. Sims v. E. & W. Ry. Co., 84 Ga. 152 (10 S. E. 543, 20 Am. St. R. 352); Babcock Bros. Lumber Co., v. Johnson, 120 Ga. 1030 (48 S. E. 438). In this case there is nothing to show that any negligence on the part of the defendant was the proximate cause of, or had anything to do with, the injury to the plaintiff. ' On the other hand, it is obvious, from the allegations, that the proximate cause of the injury was the scotching of the car by the plaintiff in the course of his duty by picking up a piece of iron lying on the ground and placing the same under the wheel or upon the track as the car was approaching. It is perfectly apparent, from his own allegations of how the accident occurred, that the force of the movement of the car caused the iron which he was holding on the.rail, when the wheel struck it, to be forced down upon the rail. The flange on the wheel, of which the plaintiff must have had knowledge, naturally had just the effect of forcing the iron along the track or rail in the direction the car was moving; and the plaintiff should reasonably have known that if he retained his hold on the iron, it would necessarily draw his hand under the wheel. Wherein can any of the specific acts of negligence alleged by the plaintiff in said declaration be the proximate cause of the injury? The physical facts as alleged show that it was the way in which he placed the iron under the wheel, and the manner in which he held the iron, which caused it to turn and to injure him. Negligence must be the proximate cause of the injury, to be the basis of a recovery in damages. Platt v. Southern Photo Material Co., 4 Ga. App. 159 (60 S. E. 1068); Vinson v. Willingham Cotton Mills, 2 Ga. App. 53 (58 S. E. 413); Southern Ry. Co. v. Puryear, 2 Ga. App. 77 (58 S. E. 306); Southern Ry. Co. v. Flynt, 2 Ga. App. 162 (58 S. E. 374); Shields v. Ga. Ry. & Elec. Co., 1 Ga. App. 172 (57 S. E. 980); Moseley v. Sheffield, 123 Ga. 199 (51 S. E. 309); Richmond R. Co. v. Dickey, 90 Ga. 491 (16 S. E. 212); Hamby v. Union Paper Mills, 110 Ga. 1 (35 S. E. 297).

The cases of King v. Seaboard Ry., 1 Ga. App. 88 (58 S. E. 252), and Brown v. Rome Machine &c. Co., ante, 142 (62 S. E. 720), do not aid the plaintiff. Even if the plaintiff was acting in haste or under a situation approaching art emergency, it was his own act from which his injury flowed proximately, and not the act of his master. It is not alleged that the cars could not have been scotched safely; it is only alleged that the plaintiff did not scotch this one safely. It was not the defect in the ear, it was not the defect in the implement by which the scotching was done, ' it was not the inadequacy of fellow servants that caused the car wheel to mash the iron down on the plaintiff’s hand. His hand was mashed because he put it between the iron scotch and the rail and did not jerk it out quick enough. We have no power to make laws regulating the right of employees to compensation when injured in the service of the employer; if so, we might undertake to ameliorate conditions as they exist under the present law. We only declare and administer the law as it is. And the law, as it is, does not authorize the plaintiff to recover.

Judgment affirmed.