
    20529.
    Atlantic Coast Line Railroad Co. v. Cox.
    Decided January 14, 1931.
   Bloodworth, J.

1. Under the petition the defendant was not liable for failing to furnish to the plaintiff a safe place in which to work. There was no allegation that the plaintiff did not know of the conditions which he alleged made the place unsafe to work in. On the contrary, the petition shows that the conditions were apparent to every one and were known to the plaintiff. It follows that he assumed the conditions as an ordinary risk of his employment, and can not in this action 'recover because of them.

2. likewise, the defendant is not liable in this suit because it furnished the plaintiff with an incompetent fellow servant, for the petition, construed most strongly against the pleader, shows that he knew of the incompetence of the fellow servant. This being so, the negligence of the defendant in furnishing such a fellow servant was waived by the plaintiff. However, “the waiver does not extend to any negligence of which the fellow servant himself may be guilty.” Richmond & Danville R. Co. v. Worley, 92 Ga. 84, 88 (18 S. E. 361). Under the ruling in that case the petition set out a cause of action, and the general demurrer was properly overruled.

3. However, in view of the foregoing rulings, certain special grounds of the demurrer to the petition should have been sustained, and subparagraphs a, e, f, and g of paragraph 15 should have been stricken; and the court erred in overruling those special grounds of the demurrer. That error rendered the further proceedings in the ease nugatory.

Judgment reversed.

Broyles, C. J., and Luke, J., concur.

Wilson, Bennett & Pedrick, for plaintiff in error.

Kelley & Dickerson, Quincey & Quincey, contra.  