145 Ga. 331 | Ga. | 1916
Herbert Hall brought an action for damages against E. T. Lamb, as receiver of the Atlanta, Birmingham and Atlantic Railroad Company. A demurrer to the petition was filed; and an amendment was made. The defendant again demurred. The demurrer was overruled, and a bill of exceptions pendente lite was filed. A verdict was rendered in favor of the plaintiff. A motion for new trial was overruled, and the defendant excepted.
The present suit was not brought by an injured employee of a common carrier by railroad against his employer; and therefore it is unnecessary to discuss the effect of the act of 1909 (Civil Code of 1910, § 2782), or the law relating to such a ease as it stood prior to that act. In this case there was a general averment of freedom from fault on the part of the plaintiff.
This point was well taken. It might be inferred from the allegations of the original petition that the plaintiff was injured immediately after he had finished his work upon the car mentioned. The amendment alleged that he had finished such work an hour and a half before he was injured. So far as this car was concerned, therefore, the amended petition showed no duty on his part to be at that place at the time of the injury, or that he was properly there. It was alleged that he was a car-inspector. It was not alleged that he was inspecting any car, or was discharging any particular duty at the time of the injury, or in fact what business he had which required or authorized him to be upon the track of the Atlanta, Birmingham and Atlantic Eailroad Company at that time. Mere general allegations that he was in the proper place, and that it was necessary and customary for him to be there in the performance of his duty, and that this was one of the usual places in which he had to be in order to perform his duties, were not sufficient as against a special demurrer which called upon him to show what duties rendered it necessary or proper for him to be at that place (which was upon the railroad track) generally or at that particular time. This was not a mere useless call for details, but was a matter of importance to the defendant in preparing his defense. Had the plaintiff met this demurrer by proper allegations, the defendant could have investigated their correctness, and, if he believed them incorrect, have sought to produce evidence to
The error is' one of such materiality that a reversal must result. This being so, it is unnecessary to consider the motion for a new trial. Had the plaintiff amended his petition by giving sufficient opportunity for the defendant to prepare his case, we can not know that the trial would have proceeded as it did, or that the questions raised by the motion for a new trial would have been the same as those now made. See, in- this connection, Savannah, Florida & Western Ry. Co. v. Chaney, 101 Ga. 420 (28 S. E. 1001).
Judgment reversed.