102 Ga. 814 | Ga. | 1898
Chaney sued the railway company for damages on account of personal injuries alleged to have been occasioned by his being struck from behind by a moving car propelled by a locomotive of the defendant while he was walking between its lines of tracks on his way to its roundhouse, at which place he was employed as a laborer of the defendant. He also alleged that the defendant was negligent in running into him and in not warning him of the approach of the car. The case came to this court upon exceptions to the overruling of a general demurrer to the declaration, and the judgment of the court below was reversed. (101 Ga. 420.) It was then held that the averments of the declaration were “not sufficient to show that the plaintiff was not a trespasser, since it might or might not have been necessary for him to reach the roundhouse by walking between the lines of the track, and it does not appear whether or not his custom in this respect was known or sanctioned by the defendant. As the declaration does not by proper allegations concerning these matters affirmatively show that he had a right to be at the place where he was when injured, it is proper to deal with him as a trespasser; and. this being so, the specific acts which caused the injuries and which are averred to constitute the negligence entitling him to recover, were not, relatively to him, negligent at all, for the reason that they involved the breach of no duty due to him bj"- the defendant.” Before the remittitur from this court was made the judgment of the court below, that court, over objection of the defendant, allowed the plaintiff to amend his declaration by adding thereto the allegations hereafter referred to. The defendant moved to dismiss the declaration as amended, on the ground that it did not set forth a cause of action. The court overruled this
The case having been brought to this court originally on exceptions to the overruling of a general demurrer, the case was still pending in the court below when the motion was made to enter the remittitur from this court and make the judgment of this court the judgment of the court below. In order to carry the case out of the court it was necessary for the judgment of this court to be entered, and at any time before this was done an amendment to the declaration was allowable. This is well
Judgment affirmed.