24 Ga. App. 252 | Ga. Ct. App. | 1919
Judge Meldrim, in his order sustaining the demurrer to the petition in this case, says:
“In the view which I take of this ease I do not deem it necessary to decide the issues raised by the demurrer, except the ground that the petition fails to set out a cause of action. It appears that the defendant railway had repair-yards in which there were tracks known as 2 and 3. On track No. 2 there was a bad-order car, from which it was necessary to remove a pair of wheels and ‘'carry them to the wheel-press, get a new pair from the wheel-press, and carry them back to the car to be placed under the car/ The gang of men of which plaintiff was a member having removed the old wheels and taken them to the wheel-press, and the new wheels having been moved down to No. 3 track to a place nearly opposite the out-of-order car, it became necessary to move the wheels from No. 3 track on to No. 2 track, and then to be rolled under the ear. As plaintiff stepped inside of track No. 2 he stepped on a broken bolt. This bolt was iron, round, 3/4 inches in diameter and from 8 to 12 inches long. It rolled, caused his foot to give way, he fell and the wheel ran on his foot, crushing it. The place where the accident occurred was fin the freight repair track department5 in the yards of the defendant.
“1. The place where the accident ooeurred was in a railway-yard, where repair work was going on, and when [where?] the work
“2. The plaintiff had just before the accident passed through that part of the yard, and over or very near the draft bolt, when he removed the wheels from under the ear on No. 2 track and took them to the wheel-press. The bolt was inside of No. 2 track. The out-of-order car was on that track. The old wheels were taken out of that car on No. 2 track. The new wheels were put in that car on the same track. The bolt was there when plaintiff removed the old wheels, or it got there in some way in the brief interval of removing one pair of wheels and putting in the new pair. This is highly improbable. The clear conclusion is that this broken bolt was in the repair yard, between the rails of No. 2 track, when plaintiff removed the old wheels, and that he did not notice it. That he had equal opportunity with the master to have seen it goes without saying. He simply stepped back over the rail of No. 2 track, on the bolt, without looking, and the wheel rolled on his foot. It is a physical impossibility to keep a repair yard, where work is going on,^free from bolts, nuts, and the like. If the plaintiff did not see the bolt when he went by it, it is not reasonable to suppose that the master would have seen it. To have inspected a repair yard and to have removed from between repair tracks a broken bolt would have required the most extraordinary care, and this is not required of the master. While it is the duty of the master to inspect, and while this is a continuing duty, yet nevertheless there must be a reasonable time for inspection and time to remedy an evil after its discovery. There is not the slightest suggestion as to how the bolt got there, or how long it had been there.
“Plaintiff relied on the case of Fenelon v. Railway, 143 Ga. 26 [84 S. E. 57]. The report of the case is meagre, but it does appear that in that case the bolt had been allowed to remain partly on a rail, in violation of a rule of the company. In the instant ease there is no averment as to the violation of a rule. In the Fenelon case it appears that the accident was at night, and it does not appear that Fenelon had equal opportunity with the master to have known of the defect. In the instant case the plaintiff had equal opportunity with the master of seeing the bolt. Plaintiff also relies
Without committing ourselves to all that the careful and capable judge has written in the above order, we are clearly convinced that his conclusion is correct.
Judgment affirmed.