124 Ga. 986 | Ga. | 1906
The railway company demurred to the plaintiff’s petition; he amended it, and the result produced was substantially as follows, so far as the setting forth of a cause of action is concerned; During the month of January, 1903, the defendant company operated a steam-shovel within half a mile of plaintiff’s home near Felton, in Haralson county, which was used for the purpose of hoisting dirt and loading the same on cars, to be transported to various points along the company’s railway. On or about January 12, an employee of the company came to plaintiff’s house and told him that “Mr. Clint Morgan, who was conductor on the train of cars which transmitted the dirt from the steam-shovel,” wanted plaintiff to come up to where the shovel was located, for the purpose of giving him some information as to where the lines of certain land lots were, etc. As the company’s employees in charge of the steam-shovel knew, the plaintiff was familiar with the location of the land lines and the numbers of the land lots in the vicinity, and the desired information was sought by defendant’s employees in order that they might not raise dirt with the shovel from lands other than those from which they had a right to take soil. In response to the message thus delivered to him, plaintiff went to the steam-shovel, though the day was very cold and ice was to be found where
After the plaintiff had amended his petition, the defendant company renewed its demurrer to it, and the court ruled that it set forth no cause of action, and accordingly dismissed the action. We are called on to decide whether or not this was the proper direction to give to the case. ' At the outset it is pertinent to remark that even were the plaintiff a guest of -the railway company, it was not an insurer of his safety, as the pleader apparently assumes in stating his conclusions of law and fact. We can not undertake to judicially say that, under the facts alleged, the plaintiff came upon the premises of the railway company upon its express invitation
Judgment affirmed.