27 Ga. App. 506 | Ga. Ct. App. | 1921
A previous verdict in behalf of the plaintiff was set aside by a judgment rendered by this court. Southern Ry. Co. v. Simmons, 24 Ga. App. 96 (100 S. E. 5). Before the second trial of the case in the superior court the petition was amended by setting forth additional grounds of negligence. While exception is taken to the order of the court overruling the demurrer to each of the additional allegations of negligence as set forth in the amendment, the court in its charge plainly and expressly limited the right of plaintiff to recover to the one ground of the' amendment setting up the negligence of a fellow servant. The amendment showed: that Dalton Lovell was the foreman in charge of the plaintiff, and was in control of the kind, place, and manner of work to be performed by the plaintiff; that it was his duty to give orders to the plaintiff, and the plaintiff was bound to obey such orders; that when it became apparent that the locomotive which struck the lever-c-ar, as set out in the original petition, was approaching that. car, Lovell commanded the plaintiff and plaintiff’s coemployees, by direct and immediate order, to remove the lever-car from -the railroad track, and in pursuance of this order, given in the emergency stated, the plaintiff and. his coemployee, one Buchannon, took hold of the front end of the lever-car to remove it, but Buchannon turned the ear loose and caused its wheel to hang on the rail; that if Buchannon had not thus turned the lever-car loose, it would have been removed from the track, and would not have been struck by the locomotive (there being ample time for its removal) but for the negligence of Buchannon in turning it loose; that when the order was given by Lovell
The evidence before the jury was not altogether the same as that set out in the previous decision of this court, there being additional testimony particularly relating to the negligence of the fellow servant. In brief, the evidence showed that when the plaintiff and his coemployees were ordered by the foreman, Lovell, to remove the lever-car from the track, the approaching train was some 250 yards away. There were four men on the lever-car, including the foreman, and they united in the opinion that there was ample time for the car to have been removed before it was struck by the locomotive. On direct examination Lovell, the foreman, testified as follows: “As to whether or not there was time' to have moved the car off before the train got there, I say, ‘ Yes, sir, if we all had stayed there, there was time enough to have moved it off.” Buchannon, the defendant’s witness, whose neg
It is not necessary to add anything further to the headnotes.
Judgment affirmed.