
    3841.
    Charleston & Western Carolina Railway Co. v. Robinson.
    Decided September 24, 1912.
    Action for damages; from city court of Richmond county— Judge W. F. Eve. October 17, 1911.
    The petition alleges, that while the plaintiff was in the employ of the defendant railway company in the capacity of night hostler at its yards in the city of Augusta, it being his duty and that of his engineer to see that the main track in the yard was not blocked at night when engines came into the yard from the main line, he and his engineer, on the night of April 5, 1907, took the road engine and removed certain cars from the main track or night track and put them on the side track, and, while performing this duty, in removing cars from the night track, he was directed by his engineer to get on the ground and go back to see if the cars cleared the night track. On’ -examination he found that they did not quite do so, and from his position on the ground, in order to communicate with his engineer by signal, it was his duty to step out from the track, which he did, and this placed him on or near the night track. While in this position, and just as his engine and ears were clearing the track, an engine on the night track came up in his rear and struck him, producing injuries described. It is alleged, that the engineer on the engine that struck the plaintiff saw him in time to have stopped the engine and to have prevented the injury, and it was the duty of the said engineer, in moving his engine in the yard, to have given signal of his approach, by ringing the bell or blowing the whistle on the engine, but the engineer gave no signal; and the plaintiff, being at the time engaged in his duties, and owing to the noise of the movements of his own train of cars and other cars in the yard, did not hear the approach of the engine behind him that struck him, and could not have heard it by the exercise of ordinary care and diligence; and with respect to his injury he was wholly without fault.
   Russell, J.

1. Prior to tlie passage of the act of 1909 relating to tlie liability of railroad companies for injuries to employees, the rule as to such liability of a railway was thus stated by the Supreme Court: “An employee can not recover from a railroad company if lie is negligent and his negligence appreciably contributes to his injury” (Little v. Southern Ry. Co., 120 Ga. 347, 47 S. E. 953, 66 L. R. A. 509, 102 Am. St. E. 104); he could not recover if he “immediately or remotely, directly or indirectly, caused the injury, or any part of it, or contributed to it at all.” Prather v. R. & D. R. Co., 80 Ga. 427 (9 S. E. 530, 12 Am. St. R. 263); W. & A. R. Co. v. Herndon, 114 Ga. 168 (39 S. E. 911). Applying to the facts in the present case the principle laid down in these decisions, the petition should have been dismissed on general demurrer.

2. When an employee participates in the movement of standing cars in a railroad switch-yard, so as to keep the tracks therein open for the passage of other engines and cars continuously and at all times, and such cars are moved and such track is left open for the passage of other cars, the employee is thereby put upon notice -that such track may be so used, and of the danger of getting upon or near such track, where he might be hit by passing engines or cars; and if, shortly after the removal of such cars from such track, he stands upon or so near such track as to be hit by a passing engine, he can not recover for this injury, which could have been avoided by the use of ordinary care and diligence. Judgment reversed.

The defendant demurred generally and specially, the demurrer was overruled, and, after verdict for the plaintiff and the overruling of the defendant’s motion for a new trial, the case came to this court on exceptions to these rulings.

Citations of counsel on the demurrer:

92 Ga. 89; 134 Ga. 371, 712; 89 Ga. 756; 101 Ga. 420; 112 Ga. 914; 120 Ga. 971; 127 Ga. 566; 129 Ga. 389-91; 130 Ga. 143; 131 Ga. 160; 133 Ga. 664; 136 Ga. 872; 3 Ga. App. 1, 266, 272; 6 Ga. App. 454, 458, 463; 7 Ga. App. 342, 345, 381, 386; 2 Ga. App. 300; 5 Ga. App. 779; 85 Ga. 197; 124 Ga. 555; 145 U. S. 614; 147 U. S. 238.

W. K. Miller, for plaintiff in error. H. C. Roney, contra.  