Barrett v. Louisville & N. R. Co

• Decision Date: 15 February 1912
• Citation: 137 Ga. 572,73 S.E. 837
• Court: Georgia Supreme Court
• Parties: BARRETT. v. LOUISVILLE & N. R. CO. et al.

73 S.E. 837

(137 Ga. 572)

BARRETT.

v.LOUISVILLE & N. R. CO. et al.

Supreme Court of Georgia.

Feb. 15, 1912.

(Syllabus by the Court.)

1. Master and Servant (§ 258^*)—Injuries to Servant—Actions—Pleading.

The petition sufficiently charged actionable negligence upon the part of the defendant.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 816-836; Dec. Dig. § 258.*]

2. Master and Servant (§ 289*)—Injuries to Servant—Pleading.

The circumstances attending the homicide, as set forth in the petition, do not make such a case as that the court can, as a matter of law, decide that the plaintiff's husband could by the exercise of ordinary care have avoided the consequences to himself of the defendants' negligence. In this connection, see Richmond & Danville R. Co. v. Howard, 79 Ga. 44 (2), 3 S. E. 426; Georgia R. Co. v. Pittman, 73 Ga. 325 (5).

(a) It was error to dismiss the petition on general demurrer.

(b) This case differs from that of Thompson v. Southern R. Co., 134 Ga. 371, 67 S. E. 939, in that in the present case plaintiff's husband was on the public crossing when struck, and was in the discharge of his duty at the time he was struck, whereas in the case cited the injured person was not on a crossing, and was not in the discharge of his duty at the time he was struck, and, further, in the case cited only one train was passing, whereas in the case at bar there were two trains coming from different directions, and the plaintiff's husband, while in the performance of his duty, was confronted with an emergency.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 1089-1132; Dec. Dig. § 289.*]

3. Special Demurrer—No rulings.

The court did not rule upon any of the grounds of special demurrer, and none of them are involved in this decision.

Error from Superior Court, Cobb County; N. A. Morris, Judge.

Action by M. L. Barrett against the Louisville & Nashville Railroad Company and another. Judgment for defendants, and plaintiff brings error. Reversed.

Mrs. M. L. Barrett instituted suit against the Louisville & Nashville Railroad Company and Walter Sparrow, an engineer in charge of one of defendant's trains, for damages on account of the homicide of her husband. Among other things the petition, as amended, alleged the following in substance: Kennesaw avenue, a public street in Marietta, a city of 8, 000 inhabitants, was crossed by the railroad of the defendant railroad company, and also by that of the Western & Atlantic Railroad Company; there being three lines of railroad tracks. A great many persons and vehicles constantly passed over the crossing by means of the street, while a great many trains constantly and continuously passed over the crossing by means of the railroad tracks. As a consequence it was a place of danger, and the plaintiff's husband wasemployed by the Western & Atlantic Railroad Company as a watchman at that place. While in the discharge of duty, at about 7:30 o'clock a. m. on the 24th day of October, 1908, he saw two persons approaching the crossing rapidly and about to...