10 Ga. App. 411 | Ga. Ct. App. | 1912
The nice questions ably argued by counsel for the respective sides can not be intelligently passed on by the court, because- the allegations of the petition are too indefinite to present these questions clearly. There was a special demurrer, demanding greater certainty, and the court overruled it, and exception is duly taken. We think it best to leave the question of ultimate liability open till the petition is made more specific. To aid the court in the further conduct of the case, let us say that if the decedent was a plain trespasser on the defendant’s tracks no liability exists unless the petition is made to show, by its allegations of fact, and not by mere statements of conclusions, that the engineer acted with wantonness or wilfulness. This is the rule in the State where the case arose, as well as in this State. If the plaintiff relies on prior negligence of the defendant in putting the decedent on its tracks, the full circumstances as to this should be disclosed. The 3d ground of the original demurrer was well taken, so far as it called for the facts showing whether the decedent was a passenger, employee, licensee, or trespasser, and showing what duty the defendant owed him, and the facts from which that duty arose. Likewise, paragraph 1 of the demurrer to the petition as amended should have been sustained, so far as it calls for further information, and so far as it points out the ambiguity of allegation as to whether the decedent was actually unconscious, or merely helpless though not unconscious. Paragraph 2 of this second demurrer should have been sustained, so far as it points out deficiency of allegation as to how or wherein the defendant was negligent in ejecting the decedent, and as to where the ejection occurred, and wherein
Judgment reversed.
