Chisholm v. Atlantic Coast Line Railroad

Roan, J.

The disallowance by the court of an amendment to the petition, offered after the action had been dismissed on general demurrer, was not. erroneous; for at the time the amendment was offered there was no petition in court to be amended. The case of Sullivan v. Rome R. Co., 28 Ga. 29, cited by the plaintiff to sustain his right to amend, has no application to this case, as that was a case in which the court below first nonsuited the plaintiff, and the Supreme Court reversed this judgment and sent the case back to the court below, and the judgment of revérsal had to be carried out 'by the circuit court, and, therefore, there was a proceeding pending in the court below, subject to proper amendment at that stage of the proceeding. The cases of Green v. Massee & Fellon Lumber Co., 6 Ga. App. 389 (65 S. E. 44); and Kennedy v. Gelders, 7 Ga. App. 241 (66 S. E. 620), where the appellate cojrrt sent the eases back with leave to amend, are not in point, for the direction in those eases was to allow an amendment of something that would be pending in the court at the time of the amendment. In the present case the -petition had been dismissed, and the pro-' eeedings on it had ended before any offer to amend was made.

The original petition stated no cause of action, and the court committed no error in sustaining a general demurrer thereto. The allegations of negligence set out therein are, that the defendant company was negligent because the foreman ordered the train forward before the gang, of which plaintiff was one, had time to load the tools; that the train started before the gang had finished loading the tools; that the foreman knew, when he gave the order to start, that the tools had not been loaded; and that it was the duty of defendant to keep the train stationary while the plaintiff was loading the tools, and that the defendant was negligent in starting the train before plaintiff had got upon the train. For a conductor or foreman to order his train forward is not in itself an act of negligence. That the plaintiff and the gang with whom he was working had not finished loading the tools when the train started was not the proximate cause of the alleged injury to the plaintiff. The proximate cause was the effort made by the plaintiff to board the train when it was apparent to him that the train was in motion, and it must have been obvious to him that it was a dangerous undertaking. In the exercise of ordinary care which he owed for his own protection, he should not have taken this risk. It is not alleged, as an act of negligence on the part of the defendant, that at the time the plaintiff undertook to board the train there was anything out of the ordinary or unexpected to him in the movement of the train, such as a violent, sudden jerk, or an accelerated speed of the train, or something similar, tending to disconcert him in his calculations. It appears simply that he saw it was moving, made an effort to board it, missed his footing and fell, and was accidentally injured. This would not, if proved, confer upon the plaintiff a right to recover, as the defendant was simply exercising the right it had to move its trains from one point to another ; and the plaintiff, not being in the exercise of reasonable care, is alone responsible for his injuries. No case has been cited sustaining the contention that an employee or servant of a railroad company is entitled to recover from the company where, in the effort to board a moving train, he missed his footing and is injured, and we know of no authority to sustain such a contention, but abundant authority can be cited to the contrary. See Louisville & Nashville R. Co. v. Edmondson, 128 Ga. 478 (57 S. E. 877); Hill v. Louisville & Nashville R. Co., 124 Ga. 243 (52 S. E. 651, 3 L. R. A. (N. S.) 432); Southern Railway Co. v. Nichols, 135 Ga. 11 (68 S. E. 789); Ricks v. Georgia Southern & Florida Ry. Co., 118 Ga. 259 (45 S. E. 268). Judgment affirmed.