
    The Rome & Carrollton Construction Co. v. Dempsey.
    An employee who is under orders to couple cars with a stick only and is injured while coupling with his hand without a stick, is himself in fault and cannot recover.
    By two Justices.
    January 14, 1891.
    
      Railroads. Negligence. Master and servant. Before Judge G-ober. Floyd superior court. March term, 1890.
    Reported in the decision.
    Dabney & Fouché, W. W. Brookes and W. T. Turn-bull, for plaintiff in error.
    Wright, Meyerhardt & Wright, hy brief, contra.
    
   Bleckley, Chief Justice.

According to the evidence of Dempsey himself, the speed of the engine in backing was open to his observation and was too high for the coupling to be made with safety. No good reason appears why he did not notice that the engineer failed to slacken the speed, and why he did not observe the fact in time to save himself by getting out of the way. ' But waiving this question, the evidence is clear and uncontradicted that he had been instructed hy the conductor to use a stick in coupling and not to attempt to make a coupling in any other way. He had no stick and fails to explain why he did not have one. At the time he was hurt he was engaged in a breach of orders, and that breach contributed to his injury; for the conductor testifies that, had he used a stick, he would not have been injured. To this testimony of the conductor he offered no contradiction and made no reply. The case is controlled in principle by Sloan v. Georgia Pacific Rwy. Co., 86 Ga. 15, 12 S. E. Rep. 179.

The court erred in not granting a new trial.

Judgment reversed.  