142 Ga. 361 | Ga. | 1914
The foregoing statement of facts, which substantially sets forth the plaintiff’s cause of action, was subject to the demurrer filed, and the court erred in not sustaining it/ As this ruling is controlling, the other assignments of error need not be considered. Assuming that the plaintiff was a licensee upon the tracks of the defendant company as alleged, the defendant owed to him the duty of furnishing a safe track on which he and his employer might run its cars and perform the work incident thereto. See Killian v. Augusta & Knoxville R. Co., 79 Ga. 234 (4 S. E. 165, 11 Am. St. R. 410). According to the allegations of the petition, on the day the injury occurred the engineer of the engine on which the plaintiff worked as fireman was backing his engine down the track, and the plaintiff had gone down the track to fix a link on the water-tank to which he intended to couple the engine. After the link was fixed the plaintiff went towards the engine to fix the pin on the engine so that it would couple to the tank, and when in about thirty feet of the engine, which was slowly backing, the heel of plaintiff’s shoe was caught between a cross-tie and an iron bar which guides the rail in throwing the switches; and being unable to extricate himself, the plaintiff began to cry aloud to the engineer to stop the engine, but the latter, not hearing or seeing him, failed to stop the engine, and it ran over the plaintiff’s leg, causing the injury. It was alleged that between the cross-tie and the iron bar there was a washout, or hole dug out, and on account of this hole the heel of plaintiff’s shoe was caught as above described, and he
Judgment reversed.