Louisville & Nashville Railroad v. Reece

136 Ga. 394 | Ga. | 1911

Beck, J.

While the general demurrer was properly overruled, we think the petition is defective in the respects pointed out by the- special demurrer: The petition alleges that the plaintiff was injured in consequence of the falling of the rail upon his foot; and in a vague, indefinite way it is averred that the rail fell upon his foot in consequence of some interference upon the part of a certain “supervisor” for the defendant company with a gang of workmen engaged in unloading rails under a certain named foreman; and it is further alleged that the hurry and confusion caused by the interference on the part of the supervisor, and the abusive language used by him to the gang of workmen, “caused them to excitedly throw railroad steel [rails] from the car without proper notice to the employees who were assisting to unload the car.” . There were no allegations to show the position of petitioner relatively to those who were engaged in unloading the steel rails, nor whether his position was such as to require that notice should be given him when a rail was about to be moved or thrown from the car; nor does it appear from the allegations of the petition that he could not easily and readily see how the rail was being handled, if it was being handled so as to put in jeopardy his person. In fact, there is not the slightest suggestion in any of the allegations of fact to show that the other employees engaged with the plaintiff were under 'any duty of giving notice when a rail was about to be moved or thrown from the car. The gist of the plaintiff’s action, it seems, is that a rail was moved or thrown without giving proper notice, and yet nothing is alleged to indicate how or why any notice of the moving or the throwing of the rail was necessary or essential to the safety of the complainant, if he observed proper precautions himself for his own safety. The allegations of the petition are so meager, vague, and indefinite that one can not determine from reading them whether the complainant was on the car assisting in unloading and was injured while so engaged, or whether he was on the ground and from that position engaged in assisting at the work of unloading the rails from the car and while engaged in the latter place a rail was thrown upon him. The demurrant was entitled to more specific information as to the contentions of the plaintiff as to how he was engaged at the time he received the injuries complained of, and what there was in the circumstances which rendered the giving of notice proper or necessary; and the court erred in overruling the special demurrer calling for this information.

The court having improperly overruled the demurrer to plaintiff’s petition, what took place subsequently thereto upon the -trial is nugatory; and it is unnecessary to pass upon the questions raised by the assignments of error in the motion for a new trial. General Supply & Construction Co. v. Lawton, 131 Ga. 375 (62 S. E. 293).

Judgment reversed.

All the Justices concur.