
    3130.
    Louisville & Nashville Railroad Co. et al. v. Curry.
    Decided September 11, 1911.
    Action for damages; from . city court of Richmond county— Judge W. F. Eve. December 3, 1910.
    The plaintiffs in error, as lessees of the Georgia Railroad, were sued for the homicide of the plaintiff’s son. The first count of the petition alleged, in brief, that the decedent, in the course of his employment as a train-hand of the defendants, went from Union Point, where he resided, to Augusta, in the afternoon, and was scheduled to go out on his regular run on a train leaving Augusta the next morning; that it was the custom of the decedent and other trainmen living at points along the line of the railroad to sleep in caboose cars in the Iíarrisonvillé yard of the defendants, near the city limits of Augusta, and this custom was well known and sanctioned by the defendants and their agents in charge of the operation of the yard; and that'a little after 12 a. m., on that morning, while he was walking across tracks in the yard, going to one of the cabooses for the purpose of sleeping there according to the custom referred to, a locomotive, moving along the track and operated by employees of the defendants, struck him and inflicted injuries from which he died; that the locomotive was proceeding at a high and negligent rate of speed, without signal or .warning of its approach, either by ringing the bell or sounding the whistle, although it was moving through crowded railroad yards where employees of the defendants, and other persons, there by consent of the defendants, were known to he moving around; that the persons operating the locomotive kept no adequate lookout, and ran over the decedent on account of their failure to keep a lookout, and through their failure to give signal or warning, and through their negligence in running at a reckless rate of speed; and that in all these matters and things the decedent was in the exercise of ordinary care and diligence.
   Hill, C. J.

Under the allegations of the petition the decedent, when killed by the running of the engine and cars, was either an employee or a licensee. Both counts .of the petition show a cause of action, and there was no error in overruling the demurrer filed thereto.

Judgment affirmed.

The second count contained the same allegations, except that, instead of alleging that the locomotive was being operated by employees of the defendants, it alleged that the locomotive was being operated by agents and servants of the Charleston & Western Carolina Bailway Company, and was there with the knowledge and consent of the defendants, it being their custom to allow locomotives of connecting carriers to enter their yards.

The defendants demurred generally to each count of the petition.

Citations in the briefs: For plaintiffs in error: 2 Ga. App. 607; 3 Ga. App. 273; 5 Ga. App. 457 (2) ; 6 Ga. App. 454, 457-8; 7 Ga. App. 342-4; Id. 381; 92 Ga. 89; 101 Ga. 420; 112 Ga. 37; Id. 237; 129 Ga. 388-91; 130 Ga. 675; 131 Ga. 161; 133 Ga. 668; Id. 730; 134 Ga. 371; 108 S. W. (Tex.) 745; 54 C. C. A. 265 (117 Fed. 233). Contra: 102 Ga. 814, 817; 116 Ga. 644; 127 Ga. 8; 7 Ga. App. 146; 49 Ga. 355; 85 Ga. 482; 90 Ga. 203; 93 Ga. 488.

Joseph B. & Bryan Gumming, J. M. Hull Jr., William K. Miller, for plaintiffs in error.

T. F. Harrison, O. II. £ B. S. Cohen, contra.  