#### Roquemore *v.*Albany and Northern Railway Company.

Submitted July 18, 1906.

Decided January 16, 1907.

Action for damages. Before Judge Crosland. City court of Albany. December 12, 1905.

The widow of Boquemore sued the Albany and Northern Railway Company for damages on account of his death, alleging, in *331substance, that while he was in the discharge of his duty as an employee of the defendant, inspecting a car on a sidetrack where it had been placed for that purpose, an engine of'the defendant ran at high speed into the sidetrack and struck the car at the end opposite to the end he was inspecting, and caused it to run over him, thus causing his death; that by mistake a switchman, who was inexperienced and incompetent, had set a switch so as to allow the engine to go oh. that track, though it was contrary to rule and custom for engines to go on it at that time of. day; that no warning of the approach of the engine was given, and its approach could not be seen and could not have been anticipated by the plaintiff’s husband; that he was without fault, and that the setting of the switch in the manner stated, the employment of an incompetent switchman, the running of the engine at high speed, and the failure to give warning of its approach, were each negligence on the part of the defendant. The defendant in its answer denied the allegations as to its negligence, denied that the plaintiff’s husband was at his post of duty, and averred that at the time of the injury he was in a perilous place, out of’the line of his duty, and that his death was due to his own negligence. A nonsuit was granted, and the plaintiff excepted.

*330Atkinson, J.

In a suit against a railroad company by the widow of an employee, for damages arising from the homicide of the husband, by the alleged negligence of fellow-servants in the running and operation of the ears and other machinery of the defendant, one of the grounds of negligence relied on was the act of a switchman in suddenly changing a switch, so as to turn a moving engine on the wrong track, thereby causing the engine to -strike and put in motion a standing car, which struck and killed the husband. On this contention the evidence was sufficient to have carried the case to a jury, upon the question of negligence by the defendant. The jury might have found that there was an affirmative showing of negligence upon the part of the company. In such case the presumption would arise that the deceased was free from fault; *Augusta Southern R. Co.*v. *McDade,*105 *Ga.*134(5), and cit. There was evidence tending to rebut such a presumption, but it was not of such a character as to demand a finding that the presumption had been rebutted. Under the pleadings and evidence as a whole, it was for the jury to sa.y whether the defendant was negligent in any respect as alleged, and whether or not the 'deceased was free from fault at the time of his injury. It follows that the court committed error by granting a nonsuit.

*Judgment reversed.*

*All the Justices concur, except Fish, C. J., absent.*

*331From the evidence it appeared, that Eoquemore was in the railroad yard, standing at the rear or south end of passenger-car No. 35 (or 55), on a sidetrack known as the “scales track,” when an ■engine of the defendant ran 'into the north end of the car, and drove it back upon him, causing his death. Lockett, the defendant’s foreman, who was running the engine, testified, that “the accident was caused by the switch being thrown on the scales track instead of the shop track.” He was intending to run the engine on the shop track, in order to take it to the shop, and had told the yardmaster that he wanted a switchman to take him to the shop track; and-the yardmaster sent a switchman, who knew that he wanted to go on that track. The switch was set for the shop track, and he told the switchman that it was set right, but the switchman afterwards changed it. He looked out and saw that the engine was on the wrong track. As soon as the engine got on it, he put on brakes and .reversed the engine. He did not blow the whistle or ring the bell, for there was no time to do so. The engine was then moving at the rate of four or five miles an hour, *332and was abcrat 20 feet from the car and about 10 feet from the switch. The engine had air-brakes, but air-brakes in good condition could not stop it within 30 feet. In his opinion it was impossible to stop the engine before striking the car. It was not going as fast as two miles an hour when it struck the car. It knocked the car about 100 feet. It was down hill. Eoquemore was standing near the yardmaster when the witness spoke to the yardmaster, and when the yardmaster gave his orders, before the witness started with the engine.. At that time Eoquemore was “between the mainline track and the long sidetrack.” The witness took the engine up the track from that point about 200 feet, and then went back and upon'the “scales track,” as before stated. “I had just gone by where he was, and was coming back on another track.” “I did not get out of sight of where he was. . . He knew that I was switching there, and was not standing on the track then. He was in a place of safety. I did not know where he was when I started back on the shop track. _ Unless he had been on the shop track, behind the train, he could have been seen by me anywhere along there. . . He knew I was switching, for I had just passed him. . . All the time, up to the time I struck the coach, if Mr. Eoquemore had been standing in the middle of the track he could have seen me. He was within 200 feet of me all the time. One engine was leav-' ing just as I went to get this one. There was another engine switching there, and cars constantly being switched to and fro. It was necessary to look out for the engines at all times during the day. The Seaboard Air Line used the same tracks. This track that this car was standing on . . was used by the Seaboard Air Line. They used the scales.” “When I went up the long track I saw Mr. Eoquemore on the long side. He was looking at some cars. He was walking alongside the cars when I came back with the engine. I next saw him when they were taking him out from under the car. I do not know what the custom is to do with that coach No. 35, which comes in from Cordele in the morning. They changed them about every day. When cars are set on the scales track or the shop track to be cleaned and inspected, it is the custom for the engine to couple them, or bump them, or anything of that kind. We hit cars in coupling to them only on signals from the crew. On a signal from a switchman, where we know cars are being cleaned, we bump them. We do this only on a signal from *333a switchman, and not without that unless we have signals to come-in there. I had no such signal. There was not any custom that. I know of about that coach standing still on the track. They set coaches for any track. Sometimes that coach, when it was put-aside there for inspection and cleaning, would be allowed to stand still for a few minutes, and sometimes they would not switch them. They were switching them all day and all night; I mean the car that is being cleaned. I was not backing. I was going forward. . . Exactly at the time the engine hit I was sitting on the box seat. . . Mr. Roquemore was car-inspector. His duties were to look after cars and see if there were any defects in them. He looks after cars when they come in, sees if there are any broken wheels, broken bolsters, and anything wrong. He just had to go along on the outside of cars 'to inspect them. He went to the ends- and inspected the whole ear, ends and sides. They do not go underneath unless there is something around the trucks, brakes, rods,, drums, and things like that. . . This particular coach was put on the most convenient track whenever it was brought in from. Cordele in the morning. It was put wherever they could get it. It was switched backward and forward during the day, to get it out of the way of everything. It had no regular place to be, and no regular time to inspect it. The inspector has to go up and down inspecting the sides of the car. When they get under a coach or work behind, they put up a flag to notify engineers. There was. no flag there that morning or any precaution of any sort taken. Mr. Roquemore could not have been behind that coach but a very short time, not over 3 or 4 minutes, when the engine came back. I had two switches to stop at, and I do not know when he went behind there. . . The drawhead is attached to the end of the platform of the car. You can examine that perfectly from the platform. Hnless it is underneath you can examine every part of the coach under the end without going on the track. You can see-just as well from the side as you can to go on the track, unless it is underneath. . . To inspect from the platform would be perfectly safe. To inspect from either side of the track would not be altogether safé. It would be perfectly safe off-the track. To-be on the track, a person would be liable to be struck at any time of the day while that coach was there. Mr. Roquemore had been working there long enough to know that, and he was a *334man of ordinary intelligence. The drawhead comes out between two pieces of iron on the end of the car; there are some springs up in there which with the drawhead are also fastened to the coach. A man would not have to go right in front of the drawhead in order to see way back up there, between the blocks or wedges of iron. He could not see at all this way; he could see better at the side of the track. As to the bumpers, there is nothing there that he can see, right in the center of the track, to be any way liable to damage the car. The best place is from the side of the bumpers. If a man looks to one side he can not see any defects on the other. There are no links on the bumpers; they are automatic. These automatic parts are back where they can be seen without going on the track at all. There is nothing there to break but the bumpers, and they can be seen from the outside of the track. He can not see the bolsters from the middle of the track.” The vice-president and general manager of the railroad company testified, that “they usually put this car in what we call'the shop, scale, or rip track. It is put where it is most convenient. Whenever it is necessary to use the various tracks, or whenever it is in the way, it is shifted backward and forward to get it out of the way. . . If any inspector is going under a car to make repairs, they put up a flag, if they were going to work on the track behind a car. That rule was' used by all inspectors. Mr. Roquemore used it when working under a car. . . That track is perfectly clear and straight at the place where the engine came back. The general custom in inspecting cars is to go alongside and look under the cars for any defects that are possible, watching the draft rigging and trucks closely. That is the only safe way. It is unsafe to go under the car without putting up 'the flag, or to go behind a car where he can not be seen. They are switching off and on there all the time. .. . It is only where there is repairing to be done that they put up the flag, — only where they have to go under a car to repair it. At the general work of inspecting they go along the side. The rules do not require them to put out a flag to inspect a car, and it is not the custom to do so.”

McGee, a car-cleaner, testified, that he was standing in the door at the rear of the ear, talking to Ro.quemore, when the engine struck the other end of the car. Roquemore was standing in the center of the track, with his arm on .the drawhead of the car. The *335shock threw the witness back to the middle of the car and on the floor. It went down to the scales, which were not very far,— about two feet. He put on the brakes and stopped it. He had seen Roquemore inspecting cars there daily for four months. Roquemore inspected this car daily, when it came in. “He had not inspected it that day, before he got hurt. I think that coach ■came in on train No. *22*that day. I don’t know what its regular schedule time was to arrive, — I would say about nine or ten in the morning. It came in sort of late the day Mr. Roquemore got hurt. When that coach came in on that schedule every day it was the custom to clean it up. They put it sometimes on the shop track and sometimes on the scale track. It was put on the scale track that day. It was not long after the train arrived that they put it on •one of these tracks. No engine was aiming to come after that car. . . When the passenger came from Cordele every day, the •engine would go over and get that car. That was in the evening about four o’clock. The engine was never allowed to go on that track there the time the coach was left on it, until it was taken away in the afternoon. I and my uncle cleaned the coach every •day. While we were in the ear cleaning it, before it was taken to be carried to the train to go back to Cordele, it was never moved, v . The switchman had not been there long. He was there about .a week. . . He was a switchman in the Central yard before he •came there. . . When the coach was struck . . Mr. Roquemore had just stepped over in the track from the other track. This track is not far from the track this coach was on. . . Standing on this other track and going from the other track to where this •coach was, I don’t know whether he could see that engine coming •or not. «It was in' plain view until he got right on this track behind this coach, and he had just stepped on this track, and if he had looked he could have seen the engine. . . He was asking if I was going to dinner, and I told him *‘Yes/*It was dinner time then. . . Before he started to inspect this car, he stepped up ■on the track and asked me if I was going to dinner, and that was the position he was in and what he was saying at the time he was struck. He was not inspecting the car at that time. He could have asked me that just as well outside of the track or from the ■other track. . . The engine was a good way up the track when he started across from the other track. . . At the time the *336engine came back I could not see it, but Mr. Roquemore could have-seen it. . . Whenever this car was on the scale track and it was necessary for the railroad to use the scales, they switched it off to one side. . . It was frequent that trains of cars were being pulled out on that track to those scales. It was happening all the time. Whenever this coach happened to be on the track they had to push it to one side to get there. Mr. Roquemope knew all this.. . . In inspecting the cars the inspector goes along the side. He does not have to go in the tracks to look under the cars. He can look better from the side, which is the place for the car inspector. He was not inspecting the car at all when he was on the track. He-was talking to me. When it was necessary to go under the car, they had a little flag they put in the track to notify them that they were there. . . There was no flag there that day. . . The switch which throws the track between the shop track and the scales track is about 50 feet. . . It is not the custom in that j^ard for engines to come back and hit that coach without warning of any kind. I never knew it to hit that coach as hard as it did that-day.” Counsel for the plaintiff, having stated that he had been entrapped by this witness, asked the witness if he had not told counsel that Roquemore called him to the door and said, “Will you go for my dinner?” The witness answered, “Yes. . . He was talking about his dinner.” Afterwards the witness testified: “Nothing passed between us except that he asked me if I was. going to dinner, and I told him ‘Yes.’ ■ I reckon he was aiming to-tell me to get his. He really did not say anything about his dinner.” The plaintiff testified as to the age of the deceased, and there was evidence as to his earning capacity.

*Arthur L. Dasher*and *S. J. Jones,*for plaintiff.

*Hooper & Dykes*and *Pope & Bennet,*for defendant.