11493.

#### Dunbar *v.*Hines, director-general.

Decided October 5, 1920.

(Certiorari was granted by the Supreme Court.)

Action for damages; from city court of Macon—Judge Guerry. April 9, 1920.

The action was for injuries to a switchman from a wooden substance which struck his head when he was standing on the ladder attached to the side of a freight-car, holding the ladder with one hand and signaling with the other to the engineer who was switching the car. In one count of his petition he alleged: that the substance that struck him fell or was blown by the wind from the top of the car, that it was not a part of the car and should not have been there, and he did not know it was *676there and had no reason to anticipate it’s presence there, and that the agents and employees of the defendant (the director-general of railroads) were negligent in placing it on the top of the car, in allowing it to remain there while operating the car, and in doing this with knowledge that by the movement of the train or the force of the wind it might be thrown or blown from the car and fall upon some employee using the ladder or standing at the side of the track. In another count it was alleged: that the substance that struck the plaintiff was a part of a decayed and frail building of the defendant, and was blown by the wind and carried over the top of the freight-car; that the building was used for the purpose of housing engines not in service, and was more than 30 years old, was weakly constructed, and had become weaker in the course of time, that the roofing was of inferior quality and the roof was blown off by the wind, the weatherboarding was rotten, and a wind blowing 30 or 35 miles an hour — a velocity not unusual or unprecedented — was sufficient to take off parts of the roof and scantlings and carry them over the car and hurl them against the plaintiff; and the defendant knew or in the exercise of ordinary care should have known of the rotten and frail condition of the building; that at the time of the injury the wind was blowing with a velocity of about 31 and not more than 34 miles an hour and was not sufficiently-powerful to blow down or unroof a properly constructed building; and that the defendant was negligent in maintaining such a building, and in allowing it to remain upon the defendant’s yards, adjacent to the railroad-tracks, after it had become so weak that it could be shaken to pieces by a wind blowing with the velocity stated above. The court sustained a general demurrer to each count and dismissed the petition.

*675Broyles, C. J.

Neither count of the plaintiff’s petition set forth a cause of action, and the court did not err in sustaining the general demurrer to each count and to the petition as a whole, and in dismissing the action.

*Judgment affirmed.*

*Luke and Bloodworth, JJ., concur.*

*676
      *Robert L.*Berner,

for plaintiff, cited: On first count and as to presumption: Ga. L. 1909, p. 160 (Park’s Ann. Code, § 2782); 58 *Ga.*485, 489; Id. 108; 80 *Ga.*521; 85 *Ga.*473; 89 *Ga.*602 (6); 95 *Ga.*685-6; 9 *Ga. App.*154; 11 *Ga. App.*167. On second count: 105 *Ga.*543, 546; 5 *Ga. App.*219. As to the theory of accident, etc.: 1 Thomp. Neg. 14, 70, 74; 50 *Ga.*509, 511; 2 *Ga.*349; 25 *Ga.*26; 97 *Ga.*777, 779; 7 *Ga. App.*135-136; *4 Ga. App.*104; 59 *Ga.*544; 143 *Ga.*26; 6 *Ga. App.*306; 3 *Ga. App.*161; 126 *Ga.*447; 118 Mass. 251-259.

*677
      *Harris, Harris & Witman,*for defendant,

cited: As to pleading: Civil Code (1910), §§ 5538; 112 *Ga.*777 (2); 147 *Ga.*438; 122 *Ga.*695; Civil Code, §§ 2782, 3131; 117 *Ga.*47, 53; 83 *Ga.*70; 7 *Ga. App.*268, 271; 11 *Ga. App.*836; 18 *Ga. App.*117; 19 *Ga. App.*521; 20 *Ga. App.*391; 22 *Ga. App.*406; 5 *Ga. App.*454, 697; 120 *Ga.*1030. As to proximate cause, accident, etc.: 22 Ruling Case Law, § 11, p. 124; Civil Code, § 4509; 103 *Ga.*847; 93 *Ga.*570, 573; 86 *Ga.*231, 388; 85 *Ga.*507; 81 *Ga.*694; 6 *Ga. App.*459; Add. Torts, § 6; Cooley, Torts, 69; 1 Beven, Neg. 84; 2 El. & B. 490; 10 Wall. 176; 71 So. 685; 14 Am. Rep. 13; 12 *Ga. App.*286, 29Q; 23 *Ga. App.*753; 116 *Ga.*152; 124 Fed. 130; 20 L. R. A. (N. S.), note, 92, 95, 96; 3 LaBatt, M. & S. 2762.