26 Ga. App. 354 | Ga. Ct. App. | 1921
1. The allegations in a petition are sufficient to charge the defendant'with having wantonly injured the plaintiff after his perilous position as trespasser upon the defendant’s tracks had become known to the servants of the defendant operating and controlling the movements of an approaching train, where the petition alleges, that the plaintiff, in approaching the defendant’s railroad-tracks at a public crossing, detoured and attempted to cross the defendant’s tracks at a place near the crossing in the switchyards of the defendant, that the plaintiff’s presence there was known to the defendant’s watchman stationed at the crossing, whose duty it was to signal the defendant’s trains and thereby control their movements and to cause them to stop when necessary, that the watchman signalled to the plaintiff to cross in front of some box-cars of a shifting train which had come to a stop, thus assuring him that he could cross the tracks in safety, that the plaintiff in thus attempting to cross was suddenly put in a perilous situation by a sudden starting of the train and was knocked down and run over and injured, and that such perilous situation of the plaintiff was known to the watchman.
2. Although an allegation in the petition that the watchman, when he directed the plaintiff to cross the tracks of the defendant, knew or in the exercise of ordinary care should have known that the plaintiff’s safety would be endangered is subject to special demurrer as being duplicitous, such defect is immaterial, since the petition elsewhere unequivo
4. In a suit for damages alleged to have been caused by the negligence of a particular railroad company, brought against Walker D. Hines, Director-General of Railroads of the United States Government, the petition, which alleges that he is operating and controlling a certain named railroad company, sufficiently alleges negligence against the defendant when it alleges negligence on the part of the railroad company.
5. The petition was not subject to any of the other special grounds of demurrer interposed.
6. The motion to dismiss the plaintiff’s case because of no process against the defendant, not being based upon fact, was properly dismissed.
Judgment affirmed.