Charleston & Western Carolina Railway Co. v. Robinson , 11 Ga. App. 492 ( 1912 )

Russell, J.

1. Prior to tlie passage of the act of 1909 relating to tlie liability of railroad companies for injuries to employees, the rule as to such liability of a railway was thus stated by the Supreme Court: “An employee can not recover from a railroad company if lie is negligent and his negligence appreciably contributes to his injury” (Little v. Southern Ry. Co., 120 Ga. 347, 47 S. E. 953, 66 L. R. A. 509, 102 Am. St. E. 104); he could not recover if he “immediately or remotely, directly or indirectly, caused the injury, or any part of it, or contributed to it at all.” Prather v. R. & D. R. Co., 80 Ga. 427 (9 S. E. 530, 12 Am. St. R. 263); W. & A. R. Co. v. Herndon, 114 Ga. 168 (39 S. E. 911). Applying to the facts in the present case the principle laid down in these decisions, the petition should have been dismissed on general demurrer.

2. When an employee participates in the movement of standing cars in a railroad switch-yard, so as to keep the tracks therein open for the passage of other engines and cars continuously and at all times, and such cars are moved and such track is left open for the passage of other cars, the employee is thereby put upon notice -that such track may be so used, and of the danger of getting upon or near such track, where he might be hit by passing engines or cars; and if, shortly after the removal of such cars from such track, he stands upon or so near such track as to be hit by a passing engine, he can not recover for this injury, which could have been avoided by the use of ordinary care and diligence. Judgment reversed.

The defendant demurred generally and specially, the demurrer was overruled, and, after verdict for the plaintiff and the overruling of the defendant’s motion for a new trial, the case came to this court on exceptions to these rulings.

Citations of counsel on the demurrer:

92 Ga. 89; 134 Ga. 371, 712; 89 Ga. 756; 101 Ga. 420; 112 Ga. 914; 120 Ga. 971; 127 Ga. 566; 129 Ga. 389-91; 130 Ga. 143; 131 Ga. 160; 133 Ga. 664; 136 Ga. 872; 3 Ga. App. 1, 266, 272; 6 Ga. App. 454, 458, 463; 7 Ga. App. 342, 345, 381, 386; 2 Ga. App. 300; 5 Ga. App. 779; 85 Ga. 197; 124 Ga. 555; 145 U. S. 614; 147 U. S. 238.

W. K. Miller, for plaintiff in error. H. C. Roney, contra.