
    10179.
    WHEELER v. ATLANTIC COAST LINE RAILROAD COMPANY et al.
    
    Decided May 11, 1920.
    Under the ruling of the Supreme Court in the ease of Robinson v. Central of Georgia Railway Co., 150 Ga. 41 (102 S. E. 532), the court in this ease erred in sustaining the motion to dismiss the suit as to the Atlantic Coast Line Railroad Company. See 150 Ga. 109 (102 S. E. 823).
    Action for damages; from city court of Thomasville — Judge W. H. Hammond. September 19, 1918.
    
      Titus & Dekle, for plaintiff.
    
      Bennet & Branch, Merrill & Grantham, for defendant.
   Bloodworth, J.

This was a suit for damages for the homicide of the plaintiff’s husband and was brought against the Atlantic Coast Line Railroad Company and three of its employees. .Upon the call of the case the defendant company made a motion in writing to dismiss the action, so far as it was concerned, upon the following grounds: “ (1) The petition of the plaintiff shows that the cause of action for which she sues to recover damages arose out of the homicide of the plaintiff’s husband, Ransom C. Wheeler, it being alleged in said petition that the said Ransom C. Wheeler was run over and killed by certain box-cars attached to an engine being operated by Charlie Griffin as engineer, Link Wright as fireman, and Simon Cook as flagman, and that said engine being operated by said engineer, fireman, and flagman was owned and operated by the defendant Atlantic Coast Line Railroad Company, by and through its agents and employees aforesaid. (3) The defendant is not liable to the plaintiff in damages as alleged in the petition, because the petition alleges that said Ransom C. Wheeler was run over and killed on the 3d day of January, 1918, and on December 38, 1917, at 13 o’clock noon, the President of the United States, through Newton D. Baker, secretary of war, took possession of and assumed control of each and every railroad system in the United States, including the line of railroad of the defendant, and that since said date the line of railroad of the defendant has been operated by the government of the United States, through the director-general of railways and his subordinate officers and agents; and this defendant was not operating said railroad, or in the possession or control of same, or any of its railroad properties, and had no agents or employees in charge oí its railroad properties, but that the agents who are alleged to have been operating said engine were the agents and employees of the United States railroad administration, W. G. McAdoo, director-general of railroads, working for the Atlantic Coast Line Railroad under Lyman Delane, federal manager for said Atlantic Coast Line Railroad, and were not the agents or employees of the defendant.” Upon consideration of the motion the court sustained it and dismissed the suit as to the Atlantic Coast Line Railroad Company.

Under the ruling of the Supreme Court in Robinson v. Central of Georgia Ry. Co., 150 Ga. 41 (102 S. E. 532), there was no merit in the motion to dismiss, and the court erred in sustaining it.

Judgment reversed.

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