Summary
In Georgia Southern Fla. Ry. Co. v. Williamson, 84 Ga. App. 167 (65 S.E.2d 444), this court held that the failure of the judge to have the defendant in error notified of his intention to certify the bill of exceptions is not a reversible error.
Summary of this case from Hay v. CarterOpinion
33441.
DECIDED MAY 8, 1951. REHEARING DENIED JUNE 5, 1951.
Damages; from Macon City Court — Judge Baldwin. December 14, 1950.
Hall Bloch, Denmark Groover Jr., for plaintiff in error.
Thomas J. Lewis, Thomas J. Lewis Jr., R. M. Maxwell, E. W. Maynard, Carlton Mobley, contra.
1. The action or non-action of the trial court relating to the notice which the judge shall require to be given to the defendant in error to a bill of exceptions or his counsel to afford opportunity to determine its correctness is not reviewable by this court, and is not the proper subject matter of a motion to dismiss the bill of exceptions.
2. The plaintiff's petition, as amended, set out a cause of action against the defendant railroad company under the Federal Employers' Liability Act and was not subject to the demurrers, general and special, interposed by the defendant thereto.
DECIDED MAY 8, 1951. REHEARING DENIED JUNE 5, 1951.
Arthur D. Williamson, whom we shall hereinafter call the plaintiff, brought suit in the City Court of Macon, Bibb County, against the Georgia, Southern Florida Railway Company, hereinafter called the defendant, a common carrier by rail of freight and passengers, incorporated and existing under the laws of this State, seeking to recover of said defendant, $200,000 in damages on account of certain permanent personal injuries which he sustained by reason of the defendant's alleged negligence. The plaintiff's original petition set forth substantially the following facts: On May 28, 1950, while the plaintiff was an employee of the defendant, being a switchman in its railroad yards in said city and county, he sustained certain personal injuries resulting in the amputation of his right hand at the wrist and his right leg between the ankle and knee joints. The duties engaged in by the plaintiff on behalf of the defendant required that he turn switches, ride cars, give signals, couple and uncouple cars, apply and release hand brakes on cars, and assist generally in necessary switching movements in the defendant's railroad yards at Macon. On said date, around five o'clock in the afternoon, the plaintiff was engaged in the performance of his duties as such switchman of the defendant, when, by reason of the defendant's negligence "in allowing lumps of coal and other debris to remain beside the tracks in the switchyards. . aforesaid, over which it was necessary for petitioner to pass in the performance of his duties," he was injured. For approximately thirty days prior to the above date the defendant had allowed lumps of coal, clinkers, old brake shoes, scraps of metal, bark from pulpwood logs, and other debris to collect and remain in its yards and along the sides of and between the tracks and the plaintiff, in the performance of his duties, had to pass over and upon such debris, and for such time there was scattered about this yard and on the lead track therein between track No. 1 and track No. 10 loose coal and the defendant had permitted the same to remain along the side of said tracks where it was necessary for the plaintiff to perform his duties as the defendant's switchman. It was the duty of the defendant to use reasonable and proper care to furnish the plaintiff with a safe place to work and perform his duties in the course of his employment. The defendant did not regard its duty in his behalf, by failing to use reasonable and proper care to furnish the plaintiff with a safe place to work, and did direct the plaintiff to work in its yards at Macon under the foregoing conditions. Such debris, so scattered along the sides of its tracks in this yard rendered same, at the point where the plaintiff had to perform his duties and was injured, unsafe for use by the plaintiff in the performance of such duties and the defendant thereby negligently failed to furnish the plaintiff with a safe place to work. On said occasion in these yards of the defendant, the plaintiff, with other employees of the defendant's switching crew, was assorting and switching cars therein from the lead or ladder track to various other tracks in the yard. In these yards the lead or ladder track has other tracks leading therefrom and the cars to be sorted or switched at this time were being set in motion by a switch engine, then uncoupled from the other cars and allowed to roll by their own momentum into the desired tracks. At this time the switch engine was coupled to approximately eight cars and the plaintiff noticed from his "switch list" that the next car in said cut of cars to be switched was a Pennsylvania boxcar which was to go into track No. 11. During the said switching movements, the plaintiff saw that other cars in track No. 10 had fouled the lead track so that there was not clearance for this boxcar to proceed beyond track No. 10, — that he signaled to him to move the train up to the cars which were standing on track No. 10 and couple with the cars and move them about two car lengths up track No. 10 so that the switch track No. 10 could be operated to make the switching movement desired. The conductor acknowledged the signal and it then became his duty to transmit same to the engineer, but notwithstanding this acknowledgement, the "shoving movement" was not begun. Instead, the defendant's conductor gave to the engineer a "kick" signal so as to "kick" the boxcar down the lead track toward track No. 10, and the engineer operated the locomotive rapidly for a short distance and the boxcar was cut off or uncoupled from the other cars, causing it to move in advance of the train along the lead track and towards track No. 10, where the cars were standing. The act of the conductor in signaling the engineer to "kick" the car and having the other switchman to cut the car in this operation instead of having the car shoved as he was required to do pursuant to plaintiff's signal, constituted negligence on the defendant's part and contributed to the plaintiff's injury. The plaintiff, when he saw that the car had been "kicked" toward track No. 10, so that it was his duty to ride the car in order to be at the end of the cars on track No. 10 when the "kicked" car made contact with them in order to set the couplers properly and to be there to perform his duties in signaling in the shoving movement which necessarily had to follow. As the plaintiff started towards this car his mind and attention were absorbed and engrossed in the movement being made, and the approaching boxcar, and he did not see a lump of coal or other debris, the exact nature of which is to him unknown, and which was lying on the ground in his path, and he stepped thereon with his left foot. When plaintiff did so, this object, about the size of a man's fist, rolled under his foot, causing him to lose his balance and to fall in front of the oncoming boxcar. Before plaintiff could extricate himself the whole of this car passed over his right leg and right hand, mangling same, from which he suffered much pain, and also caused same to have to be amputated. The plaintiff, as a result of these injuries, will never be able to perform railroad work and his earning capacity is permanently impaired. Said injuries were the direct and proximate result of the defendant's negligence. The defendant was negligent in that the conductor signaled the engineer for a "kicking" movement of this car and had the other switchman to cut the car in a "kicking" movement instead of having same shoved, as the plaintiff had signaled and as he was requested to do in the operation of the train. The defendant was negligent in "kicking" and not shoving the car after the plaintiff had so signaled and the conductor had acknowledged the same. The defendant was negligent in "allowing coal, clinkers, brake shoes, scraps of metal, bark from pulpwood logs, and other debris" to collect and remain in its yards along the side of its tracks, knowing that such yards therefore were dangerous and unsafe for use by switchmen working therein and that the plaintiff would have to perform his duties thereabouts with said yards in such condition. The defendant was negligent in not removing the aforesaid debris from its yards before assigning the plaintiff to work therein and in its failure to furnish the plaintiff with a reasonably safe place to work.
The defendant demurred to the petition generally. The defendant also interposed several special demurrers to various parts of the petition. The defendant attacked paragraph four of the original petition as containing allegations which were surplusage and irrelevant, namely the allegations "in allowing lumps of coal and other debris to remain beside the tracks in the yards of the defendant aforesaid, over which it was necessary for petitioner to pass in the performance of his duties." The defendant claims that there does not appear to be any causal connection between "lumps of coal and other debris" and the plaintiff's injury, and it does not appear how such articles constituted negligence as to the plaintiff at said time. The defendant also demurred specially to paragraph 5 because the allegations thereof were irrelevant and not material to any cause of action which the plaintiff may have against it as set out in the petition, and because there is no causal connection between the alleged scattering of loose coal about the yards of the defendant and on the lead track between tracks Nos. 1 and 10 and allowing it to remain along the side of the tracks and the plaintiff's injury, and because it was not shown how the alleged scattering of loose coal and allowing the same to remain there constituted negligence as to the plaintiff. The defendant further demurred specially to the allegations of paragraph 6 as being irrelevant and immaterial and because there is no causal connection between the alleged allowance of lumps of coal, clinkers and other debris to collect and remain in its yards and along the side of its tracks and the plaintiff's injury, and also that it was not shown how the same constituted negligence by the defendant as to the plaintiff. The defendant demurred to the allegations "clinkers, old brake shoes, scraps of metal" and other debris as being irrelevant and not material to any cause of action which the plaintiff may have against it and because no causal connection appears between the allowance of such debris to remain in its yards and the plaintiff's injury and because it did not appear that the allowance of such debris constituted negligence on the defendant's part. The defendant also demurred specially to the allegations of paragraph 8 as being irrelevant, and because it was not shown what officer or agent of the defendant directed the plaintiff to work in the yard at said time and place under such conditions, and because it did not appear that such agent of the defendant was acting at the the time within the scope of his employment, nor did it appear when such directions were given. The defendant further demurred to said paragraph because there is no causal connection between any such directions given the plaintiff and his injury and same are not material to any alleged cause of action which plaintiff may have, and because it is not shown how such directions constituted negligence. The defendant also demurred to the words, "under the conditions as hereinbefore described" and moved that same be stricken. The defendant demurred to paragraph number 9 as containing irrelevant allegations and because no causal connection appeared between the alleged debris and the plaintiff's injury and because it was not shown how the alleged presence of the debris constituted negligence on the defendant's part as to the plaintiff's injury. The defendant demurred specially to paragraph 15 as being immaterial and because there was no causal connection shown between any alleged signaling to the engineer by the conductor and the plaintiff's injury, and because it was not shown how same constituted negligence as to plaintiff. The defendant also demurred to the use of the words "other debris" and "debris" appearing in paragraphs 4, 6, and 9 in that it does not appear what constituted such "debris." The defendant also demurred to the words in paragraph 17, "in his path" as being vague and ambiguous and not sufficient to put it on notice as to where the plaintiff stumbled, it being entitled to know the exact place at which the plaintiff claims to have been when he stepped on the alleged object. The defendant then demurred to paragraph 26 and the lettered subdivisions thereof on the ground that the allegations of the petition were insufficient to base such alleged acts of negligence upon.
Thereafter, the plaintiff amended paragraph 4 of the petition by adding the words "hereinafter set out" after the words, "other debris," and by adding after paragraph 8 the words, "before and hereinafter" after the word "herein" and also after the word "described" the following: "Plaintiff was directed by his supervisor, the conductor and foreman of said switchcrew in charge of the same at said time and place, to-wit: One P. S. Finney, to work along beside the lead tracks at the place aforesaid, and said foreman, in directing plaintiff so to work, was acting within the scope of his employment, and in and about the business of his master in the performance of the work then and there being done." The plaintiff also amended paragraph 15 by adding after the word "petition" the words "created an emergency," and also by adding after same a new paragraph known as 15 1/2 as follows: "That in the emergency thus created petitioner immediately proceeded toward said moving car, as his duties required, for the purpose set out in paragraph 16." The plaintiff struck paragraph 17 by amendment and added the following in lieu thereof: "That petitioner started towards said moving car, as his duties required, using the walkway along the east side of the lead track approximately two feet from the rails, and in doing so it was necessary for him to cross over the debris scattered along the side of the track as heretofore described. His mind and attention were absorbed and engrossed in the movement being made, and the approaching boxcar, and he did not see a lump of coal or other debris in his path as aforesaid, and he stepped on a lump of coal or other said loose debris, the exact nature of which is to petitioner unknown, with his left foot." The plaintiff then amended the allegations of negligence as to the defendant's failure to furnish him with a safe place to work by adding "having in view the allegations of the petition hereinbefore alleged." This amendment was allowed subject to objection.
To the plaintiff's petition as amended the defendant renewed its demurrers general and special and also demurred to the amended paragraphs on the same grounds as above and set out that the amendment had not corrected the defects in the petition. The defendant demurred to the words in paragraph 15 and to the new paragraph 15 1/2 "in the emergency thus created" because same was a conclusion and no emergency being shown from the petition as a matter of fact and law. The defendant demurred to paragraph 17 on the same grounds as above and set up that same was vague and ambiguous, that the exact place at which the plaintiff was using the walkway along the defendant's track did not appear, that it was not alleged why it was necessary to cross over the debris scattered along the defendant's tracks and the words "as heretofore described" were not sufficient to put it on notice of what debris the plaintiff had in mind, and the exact nature thereof is not set out, and because said paragraph shows that the allegations thereof are speculative and conjectural on the plaintiff's part and that he does not know what he stepped upon and that same cannot be made the basis of any liability of the defendant to him nor the basis of any breach of duty by it to him.
The trial judge overruled said demurrers general and special on each ground thereof, and to this judgment the defendant excepted.
A motion is made by the plaintiff to dismiss the bill of exceptions because of the failure of the defendant to comply with the requirements of the act of 1946 (Ga. L. 1946, pp. 726, 735) (Publisher's Pocket Supp. to Code, § 6-908 (1) in that the court before certifying the bill of exceptions, did not require reasonable notice and opportunity to be heard on the question of whether or not said bill of exceptions was complete to attorneys of record for the plaintiff, nor did said counsel waive said privilege or in writing approve the bill of exceptions, but same was signed and certified by the court.
1. We will deal first with the motion of the plaintiff to dismiss the bill of exceptions. The action or nonaction of the trial judge respecting the provisions of Rule 7 of the Rules of Practice and Procedure for Appeals or Review, unofficially codified in the Publisher's Pocket Edition of the Code, § 6-908 (1), and which relate to the notice the trial judge shall require to be served upon a party to a bill of exceptions or his counsel to afford opportunity to determine its correctness, is not reviewable by this court. See Ga. L. 1946, pp. 726, 739, Code Supp. § 6-909; Ellis v. Gisi, 77 Ga. App. 56 ( 47 S.E.2d 825); Midtown Chain Hotels Company v. Bender, 77 Ga. App. 723 ( 49 S.E.2d 779); Horne v. Skinner, 206 Ga. 491 ( 57 S.E.2d 576).
It follows that this motion being without merit is overruled.
2. The liability of the defendant is predicated upon a failure by it to furnish to the plaintiff, its employee, engaged in the performance of the duties of a yard switchman in defendant's yards at Macon, a reasonably safe place in which to perform the duties of his employment. 45 U.S.C.A. 54. If the defendant failed to furnish to the plaintiff a reasonably safe place to work, then if the petition sufficiently alleges facts showing this, a cause of action for the plaintiff against the defendant is set forth and the trial judge correctly overruled the defendant's general and special demurrers to the petition.
It is claimed by the defendant that the court erred in overruling its special demurrers directed to particular facts of the petition, in which it required more specific allegations by the plaintiff, and that had the court ruled properly in this regard, striking from the petition the improper and incomplete or insufficient allegations, the petition would not have stated a cause of action in the plaintiff's favor, and the general demurrers thereto should have been sustained. The facts are fully stated in the statement accompanying this opinion. We will not attempt to further elaborate thereon. Boiled down to their essence, the special demurrers of the defendant to various paragraphs of the petition and to the amendment of the plaintiff and to the petition as amended set forth that these allegations are vague and ambiguous, irrelevant and immaterial, that there is no causal connection between the debris, alleged to have been scattered in the defendant's yards and along the side of the tracks, and the injury sustained by the plaintiff, and that it is not shown from the petition how the presence of the debris constituted any negligence on the part of the defendant toward the plaintiff, and also because the exact place where the plaintiff claims that he stepped upon a piece of loose coal or other debris or substance, which caused his left foot to turn and resulting in his falling in front of the approaching boxcar and the wheels of the car to so injure him as to cause the amputation of his right leg and right hand, is not alleged, and because it is not alleged why it was necessary for the plaintiff to cross over the debris scattered along the side of the track, and also because the words "as heretofore described" do not suffice to inform the defendant what debris was scattered along the tracks, as contended by the plaintiff, and because such alleged debris is not described therein as to content, size or exact location, and also because it appears from paragraph 17, added by the amendment, that the allegations of the plaintiff are mere speculation and conjecture in that the plaintiff shows that he does not know exactly what he did step upon that caused his foot to turn over and him to fall.
The office of the special demurrer in this State is to point out defects in the petition as to matters of form and to point out irrelevant and ambiguous matter, and to require the pleader to make his pleading more certain and as to a bill, petition or declaration to require the plaintiff to set out his alleged cause of action and grievance against the defendant with such definiteness, clarity and particularity as to enable the defendant to know the exact nature of the complaint against it and to prepare itself to defend against the charges made. A petition does not have to go into minute detail and the pleader is not required to set out his evidence in the petition. Reasonable definiteness and certainty is all that should be required, even though the attack is made by special demurrer, and other demands by special demurrer should not be encouraged. Southern Ry. Co. v. Lunsford, 50 Ga. App. 829, 833 (3) ( 179 S.E. 571); Charleston c. Ry. Co. v. Attaway, 7 Ga. App. 231 (2) ( 66 S.E. 548). While conclusions should not be alleged as a basis for recovery the same are not demurrable where there are facts alleged to support them, even though they appear in other parts of the petition. Furr v. Burns, 124 Ga. 742 (5) ( 53 S.E. 201); Western Union Telegraph Co. v. Harris, 6 Ga. App. 260 ( 64 S.E. 1123).
Under the act of Congress, known as the Federal Employers' Liability Act (45 U.S.C.A., supra), it was made the duty of a railroad company to furnish to its employees a safe place in which to carry out the duties of their employment, and the railroad is charged with the exercise of ordinary care in both the selection and the maintenance of such a place. Southern Ry. Co. v. Puckett, 16 Ga. App. 551 ( 85 S.E. 809), affirmed 244 U.S. 571 ( 37 Sup. Ct. 703, 61 L. ed. 1321). The plaintiff predicated his right to recover upon the failure of the defendant, his employer, in this regard. The plaintiff charged in the petition that the defendant failed, as to the place where the plaintiff was required and directed to perform the duties of his employment, to maintain such place in a reasonably safe condition. This was based upon the fact that about the railroad yards of the defendant there were scattered loose coals, clinkers and other named debris and articles, which had been allowed to accumulate there, and which had been there such a length of time as to put the defendant on notice that they were there. The plaintiff charges that his duties consisted of meeting the cars as the defendant's switch engine cut them loose and riding same into the proper siding, and that in order to do this, when a car was cut loose from the engine pulling or pushing same or was shoved, the plaintiff had to go along the defendant's tracks and yard toward such car, which would be rapidly approaching, and open the switch and cause the same to go into the defendant's track. In such circumstances, when a car was cut loose, it necessarily became the duty of the plaintiff to make haste in the performance of these duties and this the defendant is charged with knowing. Under the ruling made in the Puckett case, supra, and cases cited and under the ruling made in Brown v. Western Ry. of Ala., 338 U.S. 294 ( 70 Sup. Ct. 105, 94 L. ed. 100); s. c. 77 Ga. App. 780 ( 49 S.E.2d 833), where it appeared from the petition that the railroad company allowed clinkers and other debris to accumulate in its yards and where the duties of a trainman or yardman employed by such railroad company required him to use such yard and the place where such clinkers and other debris were scattered about, the jury might find, in a case brought under the above law, that the railroad company had not furnished to employees required to use the yards, a reasonably safe place in which to work, and that where one was caused to fall by reason of a loose piece of coal, clinker or other debris scattered along the tracks where such person was required to pass in performing his duties, upon which the employee stepped, such fall resulting in his injury, a prima facie case of liability is made against the defendant railroad company under the Federal Employers' Liability Act. The petition of the plaintiff, as amended, therefore sets forth a cause of action good as against the general demurrers of the defendant railroad company thereto.
However, it is urged by the defendant railroad company that in the Brown case there were no special demurrers directed to the allegations or lack thereof regarding the kind of debris on which the employee stepped and as to the exact place where the employee stepped thereon. This being so, the railroad contends, the present case differs from the Brown case. The defendant says that the special demurrers were well taken and that upon striking from the plaintiff's petition the irrelevant and improper allegations, the petition failed to set out a cause of action under the Brown case. With this we can not agree. These grounds of special demurrer were not well taken. The petition described the place of work and the condition of this place of work at the time the plaintiff was engaged in performing his duties with sufficient clarity and fullness to meet the grounds of special demurrer urged thereto. Under the facts alleged, it was not necessary that the plaintiff allege more than he did.
The details asked for by the defendant in its special demurrer were within the peculiar knowledge of the defendant and its other employees. The petition was not subject to demurrer because the plaintiff failed to allege whether he stepped upon a clinker, a piece of coal or other debris. The plaintiff was not required to keep his eyes on the ground as he raced to meet the oncoming boxcar, in order to carry out his duties. He had a right to assume that the way was clear. He is not required to know exactly where this clinker was located. The petition is sufficient when it alleges that he went along beside the track towards the place where he was to meet the car and cause same to be placed on the particular track required and as he did so his foot struck a piece of coal or other debris about the size of a man's fist and he was thereby precipitated to the ground and in front of the oncoming car. There is no merit in the contention that there is no causal connection between the allegations as to the debris being scattered on the ground in this yard and the plaintiff's injury. The unsafe place in which to perform his duties furnished to the plaintiff by the defendant railroad company caused plaintiff's left foot to turn, which caused him to fall and to be thrown under the boxcar, the wheels of which injured him.
Neither is there any merit in the repeated contention of the defendant that it did not appear from the petition that the alleged debris scattered about this railroad yard where the defendant required the plaintiff to work constituted any negligence on its part as to the plaintiff and his injury. The petition, as amended, was sufficiently full. Neither paragraph 17 of the petition, as amended, nor any other paragraph of the petition was subject to demurrer because it did not appear therefrom why it was necessary for the plaintiff to cross over the debris along the side of the track. From the allegations of the petition as amended, it clearly, adequately and sufficiently appears that the plaintiff, in the proper performance of his duties, was required to use that portion of the defendant's yards whereon were scattered the loose pieces of coal, clinkers and other debris. The plaintiff was not required to set out the content, the exact nature, the size and the exact location of the piece of debris upon which he stepped and which caused him to fall. Paragraph 17 was not subject to the special demurrer urged because of the use therein of the words "as heretofore described." It appeared sufficiently from the petition as a whole that there were scattered about the defendant's yards being used by the plaintiff in the performance of his duties when he was injured, loose pieces of coal, clinkers and other pieces and articles of debris, and that this was distributed generally about the portion of the yards being used by the plaintiff in the performance of his duties when he was injured. The petition, as amended, was full and clear enough to sufficiently put the defendant on notice as to the nature of the plaintiff's claim in this and other regards. There is no merit in the defendant's contention that paragraph 17 of the petition, as amended, shows on its face that it is mere speculation and conjecture on the plaintiff's part as to the injury and the conditions causing and surrounding the same and because the plaintiff states that he does not know exactly what he stepped upon and which caused him to fall, as alleged.
There is nothing conflicting in the case of Moore v. Chesapeake Ohio Ry. Company, 142 Fed. 2d, 176 (5): That headnote reads as follows: "Where under the evidence a jury's verdict for plaintiff could have resulted only from speculation and conjecture, such a verdict can not be allowed to stand." Neither is the case of Galloway v. U.S., 319 U.S. 372, 395 ( 63 Sup. Ct. 1077, 87 L. ed. 1458), in conflict with what we here hold. Those cases deal with questions of proof of the allegations in the petition. Here we are dealing with a question of law, as to the sufficiency of the allegations. The question as to whether the proof in this case on the trial sustains the allegations, is quite a different matter.
The plaintiff's petition, as amended, was not subject to the grounds of general and special demurrer urged. It does not appear that there had been any assumption of risk by the plaintiff in working about the yard of the defendant and performing his required duties knowing that there were scattered about the yard loose coal, clinkers and other debris, upon which he might step and which if stepped upon might cause him to stumble. This doctrine was abolished by the enactment of the Federal Employers' Liability Act. See Tiller v. A. C. L. Ry. Co., 318 U.S. 54 ( 63 Sup. Ct. 444, 87 L. ed. 610, 143 A.L.R. 967).
There is no merit in the defendant's contention that to rule as above is to abolish the special demurrer rule prevailing in Georgia. We have carefully considered the defendant's special demurrers to various paragraphs and allegations of the plaintiff's petition, as amended, and hold that after considering the same, the plaintiff's petition sufficiently, definitely, clearly and adequately sets out a cause of action under the Federal Employers' Liability Act and the decisions based thereon, and that the petition, as amended, was not subject to any of the grounds of special demurrer urged thereto by the defendant. We have carefully considered the various special demurrers to irrelevant matter, surplusage, conclusions, and the like, and deem that the same are not meritorious. It can not properly be said that there is no causal connection between the negligence alleged and the plaintiff's injury. No rulings contained in Pollard v. Roberson, 57 Ga. App. 621, 624 (3, 4) ( 195 S.E. 897); Carter v. Powell, 57 Ga. App. 360 (2), 372 ( 195 S.E. 46); Cox v. Norris, 70 Ga. App. 580 ( 28 S.E.2d 888); Atlantic Coast L. R. Co. v. Anderson, 73 Ga. App. 343 ( 36 S.E.2d, 345), hold to the contrary of the ruling now made. The case of Lee v. Central R. Bkg. Co., 86 Ga. 231 ( 12 S.E. 307), is not authority for holding that the petition here, as amended, failed to allege a cause of action. That case was based upon the assumption of risk doctrine and was prior to the Federal law on which this case is based. There is nothing in Blackstone v. Central of Ga. Ry. Co., 105 Ga. 380 ( 31 S.E. 90) to the contrary of the ruling now made. That case does not require a ruling that the petition, as amended, was defective in not alleging exactly where the piece of debris on which the plaintiff stepped was located. The plaintiff was hastening toward the oncoming boxcar and the nature of what befell him immediately upon stepping on this piece of debris was such as to cause him to be unable to know more of the occurrence than that he stepped upon a small article of some kind as he hastened along defendant's lead track to meet the oncoming boxcar and perform his duties. There is no merit in the contention that it appears the defendant knew or in the exercise of ordinary care should have known of the existence of this debris scattered about its yards. The case of St. Louis c. Co. v. Ingram, 124 Ark. 298 (187 S.E. 452), affirmed 244 U.S. 647 ( 37 Sup. Ct. 741, 61 L.ed. 1370), and similar cases cited by the defendant, do not require a ruling that the petition, as amended, in this case was defective in not alleging facts from which the jury might be authorized to find that the defendant knew or ought to have known of the existence of this debris. The holding here made is not to the effect that the defendant company is an insurer of the safety of its employees. Under the decisions of this court in the Puckett case and of the United States Supreme Court in the Brown case, considered with the allegations of the petition, a cause of action is stated, and, as we have seen, the attacks by special demurrer of the defendant railroad company are not well taken.
Under the allegations of the petition as amended, it is not necessary to presume any negligence on the part of the defendant railroad company. Had this debris not been about the defendant's railroad yards where the plaintiff had to perform his work the plaintiff would not have stumbled and fallen, and the injury would not have occurred had he not fallen under the oncoming car. Under the allegations of the petition, as amended, the injury to the plaintiff was caused by this fall which the jury could determine was the result of the failure on the part of the defendant to maintain its yards in a reasonably safe condition; that is, to furnish the plaintiff with a reasonably safe place in which to work. The cases cited by the defendant as to the happening of an accident being insufficient to raise any presumption of negligence under the Federal Employers' Liability Act are not applicable here.
It follows that the court did not err in overruling the demurrers of the defendant to the plaintiff's petition, as amended.
Judgment affirmed. MacIntyre, P.J., and Townsend, J., concur.