8 Ga. App. 341 | Ga. Ct. App. | 1910
(After stating tlie case.)
It is manifest, from the allegations of the petition, that the conductor would not have been injured or killed but for the concurrence of all three of the acts of negligence alleged. His position between the wall and the car would not have been dangerous if the engineer had obeyed the signal and slowed down and stopped the car before reaching the point where the conductor was standing. In so far as the brick wall is concerned, it may be stated that its proximity to the track was an obvious danger, plainly apparent to the conductor; and this may be conceded to be true also in reference to the broad-gauge car on the narrow-gauge track; and if these were the only allegations of negligence, the plaintiff could not recover. But as before stated, it is manifest that the proximity of the wall to the passing broad-gauge car would not have injured or killed the deceased but for the negligence of the engineer in failing to obey the conductor’s signal to slow up and stop the backing train of cars. The conductor, in taking this position in the discharge of his duty, as alleged, had the right to believe that the engineer would obey his signal and stop or slow down the cars. In other words, the position of the conductor between the wall and the track was rendered dangerous only by the negligent conduct of the engineer, and but for such negligent conduct this position would have been entirely free from danger. The negligent conduct of the engineer,, therefore, in not obeying the conductor’s signal, was, under the allegations of the petition, the proximate cause of the homicide. The petition negatives contributory negligence on the part of the conductor; hence a cause of action was set out. It can not, of course, be logically claimed that the act of the conductor, in standing between the wall and the track, necessarily constituted contributory negligence; for the very simple reason that it is alleged that it was not a place of actual danger, until made so by the engineer’s failure to obey the signal given to him by the conductor, to stop or slow down the backing cars. We think, therefore, that the court erred in sustaining the demurrer and dismissing the petition. Judgment' reversed.
