Southern Railway Co. v. Davenport , 39 Ga. App. 645 ( 1929 )

Broyles, C. J.

1. A railway company and its engineer may be jointly sued for the negligent infliction of personal injuries, where the negligence of the company results solely from the act and conduct of the engineer. Southern Railway Co. v. Grizzle, 124 Ga. 735 (2) (53 S. E. 244, 110 Am. St. R. 191).

2. In a joint action against a railway company and its .engineer, to recover damages for the infliction of personal injuries upon the plaintiff solely in consequence of the engineer’s negligence, a verdict finding the engineer not liable, but finding in favor of the plaintiff against the railway company, is unauthorized and should be set aside. Southern Ry. Co. v. Harbin, 135 Ga. 122 (68 S. E. 1103, 30 L. R. A. (N. S.) 404, 21 Ann. Cas. 1011); Salmon v. Southern Ry. Co., 137 Ga. 636 (73 S. E. 1062).

3. The instant case is a joint action against the railway company and its engineer for the negligent infliction of personal injuries upon the plaintiff. The petition, properly construed, most strongly against the plaintiff, shows that the injuries sued for were caused solely by the negligence of the engineer. Eurthermore, upon the trial of the case there was no evidence that authorized a finding that any other employee or agent of the railway company was guilty of any negligence that contributed to the plaintiff’s injuries. Accordingly, under the above-stated ruling, the verdict, which exonerated the engineer and held the railway company liable, was unauthorized, and the court erred in- refusing to grant a new trial.

Judgment reversed.

Luke and Bloodworth, JJ., concur.