
    3118.
    ATKINSON receiver, v. SWORDS, by next friend.
    The allegations of the petition, as to some of the grounds of negligence, show a cause of action; and the petition was therefore sufficient to withstand a general demurrer.
    Decided September 11, 1911.
    Action for damages; from city court of Fitzgerald — Judge Wall. December 10, 1910.
    
      Orovatt & Whitfield, Elkins £ Wall, for plaintiff in error.
    
      L. Kennedy, McDonald £ Gi-antham, contra.
   Hill, C. J.

As far as the allegations relate to negligence of the master in furnishing an engine with a pilot, instead of an engine with a footboard, this was an assumed risk; but this allegation is pertinent, and proof of the fact would be relevant as illustrative of another alleged ground, of negligence, — that the engineer, with knowledge of the increased danger in the use of the engine, failed to keep a proper lookout, and because of this omission failed to promptly stop the engine when he saw, or by the exercise of due diligence should have seen, the plaintiff when he slipped off the pilot in attempting to make a coupling therefrom. The engineer, knowing that the switchman was in an unusually dangerous position, though as to that position the risk was assumed, should have taken precaution accordingly. On the acts of negligence charged against the engineer, the petition was sufficient to withstand a general demurrer, the employment being one as to which the defense of fellow service has been abolished by statute.

Judgment affirmed.  