Charles v. Louisville & N. R. Co, (No. 16078.)

• Decision Date: 03 March 1925
• Docket Number: (No. 16078.)
• Citation: 126 S.E. 880,33 Ga.App. 561
• Court: Georgia Court of Appeals
• Parties: CHARLES v. LOUISVILLE & N. R. CO.

33 Ga.App. 561

126 S.E. 880

CHARLES

v.LOUISVILLE & N. R. CO.

(No. 16078.)

Court of Appeals of Georgia, Division No. 1.

March 3, 1925.

(Syllabus by the Court.)

Error from Superior Court, Gilmer County; D. W. Blair, Judge.

Action by Mrs. J. B. Charles, administratrix, against the Louisville & Nashville Railroad Company. Judgment for defendant on demurrer, and plaintiff brings error. Affirmed.

Jno. T. Dorsey, of Marietta, for plaintiff in error.

Wm. Butt, of Blue Ridge, Tye, Peeples & Tye, of Atlanta, and Campbell Wallace, of Marietta, for defendant in error.

BLOODWORTH, J. This was a suit for damages for the homicide of the plaintiff's husband while he was in the employ of defendant as a trackwalker and section hand. The opinion which Judge Blair wrote in sustaining the demurrer to the petition fully meets our approval, and we adopt it as our opinion in this case:

"The decedent, as an employee of the defendant in interstate commerce, assumed all ordinary risks incident to the employment. In my opinion this rule controls the plaintiff's case against her. L. & N. R. Co. v. Kemp, 140 Ga. 657, 79 S. E. 558; So. Ry. Co. v. Blackwell, 20 Ga. App. 630, 93 S. E. 321; So. Ry. Co. v. Simmons, 24 Ga. App. 96, 100 S. E. 5. There is not an allegation as to anything unusual about the operation of the train. It came just as the decedent had a right to expect it to come, and the running of the trains was a risk he assumed. It is alleged that the wind was blowing, but the deceased must have known when he took employment that he would have windy weather during the winter months, and assumed that risk. That it was windy was known to him as well as the engine-men. It is alleged that the enginemen saw the decedent at work when 225 to 300 yards away from him, but they had the right to assume that he was on the lookout and would leave the place of danger in time to avoid injury to himself. In the Blackwell Case, supra, page 637 (93 S. E. 323) the court said: 'Had the foreman actually notified the engineer in charge of the train that the plaintiff was at work on the track only a short distance ahead of the train, the engineer would still have had a perfect right to assume that the plaintiff would be on the lookout to protect himself, and consequently would not have been guilty of any negligence whatever in acting upon this assumption and operating his train accordingly.' It is alleged that the enginemen 'saw and were aware of the fact that the plaintiff's husband was unaware of the approach of the said train.' The sufficiency of this averment is challenged by the demurrer. It seems to me that so improbable an averment should be supported by a statement of facts, and that the demurrer that characterizes it as a mere conclusion...