127 Ga. 200 | Ga. | 1906
This is a suit for damages on account of personal injuries alleged to have been received by the plaintiff, a servant (a car-coupler) of a railroad company, resulting from negligence. To support the action distinct acts of negligence are Telied upon: (1) The backing of the engine by the engineer after he had accepted the signal not to come back, or in moving without a signal, and in the speed. (2) The use by the company of a defec
In order for a plaintiff, who is an- employee, to recover against a railroad company, he must allege in his petition that he was free from fault and that the defendant was negligent. Pierce v. Seahoard Air-Line Ry., 122 Ga. 665. Where more than one ground •of negligence is specified as a basis for a recovery, the allegation •of freedom from fault must be such as to show freedom from fault in respect to each of the grounds of negligence relied upon. While it is not necessary that the pleader should use the phrase “free-from fault,” it is absolutely essential that the averments should be such that this condition of affairs should be apparent from the language used. Enough appears in the petition to show the plaintiff free from fault so far as the conduct of the engineer in moving without a signal and in reference to the speed was concerned. It follows that there is no difficulty in this regard with reference to the first grounds of negligence. If an employee of a railroad company knowingly uses defective machinery, 'he takes the risk incident to the use of machinery of this character, and the consequences resulting from such use are chargeable to him. See Georgia R. Co. v. Kenney, 58 Ga. 486(2). If the machinery be .so defective as to amount to negligence upon the part of the railroad company to permit its use (the plaintiff alleges that it was), it stands to reason that it would likewise be negligence upon the part of the servant to employ the use of such machinery, if he knew of the defect. If under such conditions he used defective machinery, he could not be said to be free from fault in that particular undertaking. Where it is alleged that the machinery is defective, and that the plaintiff in the use thereof sustained the injury as a result of the defect, the plaintiff would not state a case without going further.- It would not be presumed that he did not have knowledge of the defect. The pleadings are to be construed most strongly against him; and his want of knowledge of the delect being a material part of the.plaintiff’s case, he must affirma-0
Judgment reversed.