Homer sued the Seaboard Air-Line Railway and the Atlantic Coast Line Railroad Company for damages on account of personal injuries. On general demurrer of the Seaboard AirLine Railway, the court dismissed the action as to that company, and the plaintiff excepted. The petition alleged, that on October 13, 1913, the Seaboard Air-Line Railway delivered to the Atlantic Coast Line Railroad Company a flat-car loaded with lumber; that “the Seaboard knew it would be used for hauling lumber ,by the Coast Line;” that these two railroad companies “had traffic arrangements with each other whereby the cars of one company would be transferred to the tracks of the other as the business-and traffic exigencies required;” that on October 16, 1913, the plaintiff, who was employed by the Atlantic Coast Line Railroad Company as a switchman on the switch-engine crew, was switching several ears in the Coast Line yards, in the city of Savannah, including
It does not appear, from any allegations in the petition, that at the time the lumber fell on the plaintiff and inflicted the injuries for which he sued, the car was still loaded with the lumber which was on it when the car was delivered by the Seaboard Air-Line Kailway to the Coast Line three days before that time; and, under the rule that pleadings are to be construed most strongly against the pleader, it may be assumed that it was a different load of lumber. And if injury on account of the defective condition of the car resulted from a load placed on the car after the original load had been discharged, it should have been alleged that the car was delivered to the Coast Line with the express purpose that it be re
Our ruling in this case does not conflict with the ruling in Moon v. Northern Pacific R. Co., 46 Minn. 106 (48 N. W. 679, 21 Am. St. R. 194), that “Where, as between connecting lines of railway, the corporations controlling them are mutually bound to transport loaded freight-cars over their respective roads, such duty is necessarily subject to proper rules and regulations, and involves mutual obligations, among which is that of due diligence to provide safe cars for delivery to the servants of the company operating the connecting line to which they are transferred, and who would be exposed to danger from their defective or unsafe condition.” In that case it appears .that the plaintiff’s intestate, who was a brakeman in the employ of one railroad company, was killed while attempting to set a brake upon a loaded freight-car belonging to another railroad company, which car had been transferred by the company owning it to the track of the company by which the deceased was employed, for transportation over the road of the latter to a point thereon. There was a traffic arrangement between the companies, in pursuance of which loaded freight-cars were mutually transferred and transported over their respective lines, and, according to the rule adopted by the companies, cars so transported were inspected by both roads on the transfer track. The defective car, when received from the company owning it, was loaded with wood to be transported over the lines of the forwarding company, and, while it was being switched to its tracks by the forwarding company, the injury occurred, on account of a defective brake. The court held, that “the delivery of the car to the servants of the Manitoba Company [the said forwarding and connecting company] was an affirmation that the car was fit for use, and the latter were entitled to repose confidence in the implied assurance that such was the fact;” and that “the company owning the car should be held responsible for the consequences of its own wrongful or negligent acts or omissions, notwithstanding concurring negligent acts or omissions of the company receiving the car. The negligence of the latter does not excuse or relieve the former from liability for injuries resulting from its negligence.” Further in the same
In the case of Savannah, Florida & Western Railway Co. v. Booth, 98 Ga. 20 (25 S. E. 928), cited by counsel for the plaintiff, where a railroad company furnished a sawmill owner a car to be loaded with lumber, which car was defective in various particulars, and a servant of the mill owner was injured, the Supreme Court held that the railroad company was liable because of its failure to furnish a safe car. That case is clearly distinguishable
Counsel for the plaintiff cite-also the case of Payne v. Rome Coca-Cola Bottling Co., 10 Ca. App. 762 (73 S. E. 1087), in which it was held, that “where an action is brought to recover damages for an injury caused by the explosion of a bottle, the contents of which were manufactured, bottled, and sold by the defendant as-a harmless beverage, an inference of negligence on the part of the manufacturer arises, when it is shown that all the persons through whose hands the bottle had passed were free from fault, and that the condition of the bottle and its contents had not been changed since it left the defendant’s possession.” That case appears to us to be quite different from the case under consideration. The Coca-Cola in the bottle was advertised and sold by the defendant as a refreshing and harmless beverage, and the court held that as
It was said in White v. A., B. & A. Railroad Co., 5 Ga. App. 308 (5) (63 S. E. 234), “to impose liability, upon a railroad corporation for either the torts or the contracts, of another railroad company, it must appear that such liability attaches either by operation of law or by contract. A petition in which it is sought to charge one railroad company with liability for the tort of another, and which fails to sufficiently set forth in what manner or for what reason such liability attaches, may properly be dismissed upon demurrer.” In Southern Railway Co. v. Morrison, 105 Ga. 543, 549 (31 S. E. 564), it was said: “The servant of another seeking to recover damages from a railroad company for injuries sustained by him while shifting or moving a car on a siding, which had been left safely standing on such siding by the company for
No relation of master and servant existed between the plaintiff and the Seaboard Air-Line Railway, and no obligation rested upon that company to furnish the plaintiff with safe machinery, tools, and appliances. In order to render this defendant liable it should appear that the injury was brought about by its negligence; and this does not appear. If the Seaboard car had safely performed the task laid upon it by the Seaboard Air-Line Railway and the injury to the plaintiff resulted on account of a different burden placed on this car by the Coast Line, without authority from the Seaboard Air-Line Railway, the latter company can not be held liable.
As already suggested, the simple fact that the Coast Line had possession of the car under traffic arrangements under which it originally received the car does not sufficiently show that the car was being used at the time the injury occurred with the authority or for the benefit of the Seaboard Air-Line Railway. It is stated in the brief for the defendant that it was admitted by counsel for the plaintiff in the court below that when this injury occurred, the load of lumber that was on the car when the Seaboard delivered the car to the Coast Line had been discharged, and the car had been reloaded by the Coast Line with other lumber, and was being shifted about the yards of the Coast Line by its employees preparatory to being made a part of a train made up for another jour
In affirming the judgment of the court below, this court, in accordance with the request of counsel for the plaintiff, gives direction that if the plaintiff should file in the court below, before the remittitur from this court is entered on the minutes of that court, an appropriate amendment whereby the petition shall set out a sufficient cause of action, the case may be reinstated. Dennis v. Schofield, 1 Ga. App. 489-491 (57 S. E. 925), and cases there cited. See also Green v. Massee & Felton Lumber Co., 6 Ga. App. 389 (65 S. E. 44). Judgment affirmed, with direction.
