Southern Railway Co. v. Coleman , 42 Ga. App. 649 ( 1931 )

Jenkins, P. J.

Plaintiff, a laborer employed by the defendant railway company to keep up and repair its tracks under the supervision of a section foreman, sued for injuries sustained when he stepped into “a water-way box for a culvert on said railroad, three or four feet deep, which was covered over with honeysuckle vines.” The petition alleged: that the plaintiff could not have seen the hole by the use of ordinary care, because of its obstruction by a dense growth of honeysuckle vines; that he did not know it was there, and no one told him about it being there; that the defendant was negligent in “not preparing and giving him a safe and suitable place to work, and in not giving him knowledge of the existence of said hole, and in not placing a guard or protection around said hole.” The original petition alleged that the plaintiff was engaged in clearing bushes and other undergrowth from the right of way. By an amendment, in response to demurrer, the words “and other undergrowth” were stricken. The court overruled a general and special demurrer to the petition as amended, and the defendant excepted.

Despite the amendment to the petition, it indicates that the petitioner’s injury resulted from a condition such as he was employed to remedy, and, therefore, that the risk was one such as was assumed from the very nature of his employment. Dartmouth Spinning Co. v. Achord, 84 Ga. 14 (10 S. E. 449, 6 L. R. A. 190). Accordingly, the court erred in not sustaining the general demurrer.

Judgment reversed.

Stephens and Bell, JJconcur.