Allegations of the petition, that, while the plaintiff's automobile truck was parked upon the premises of E. T. Allen Company, and was being loaded at its warehouse and place of business at a point where someone in behalf of said company had directed that it be loaded, two box *Page 600 cars which had been parked on the siding and property of E. T. Allen Company by the defendant railroad companies at a place designated by E. T. Allen Company, rolled down the incline and damaged the plaintiff's truck — the cars not having been secured so that they would not move down the incline except by the intervention of some external cause not to be anticipated or guarded against, held to set forth a cause of action against E. T. Allen Company, and therefore, it was error to sustain that defendant's general demurrer.
DECIDED OCTOBER 4, 1944. This is a suit based upon negligence brought by A. D. Lentz against E. T. Allen Company, Atlanta West Point Railroad Company, Western Railway of Alabama, Louisville Nashville Railroad, and Georgia Railroad Company. The court passed an order sustaining the general demurrer of E. T. Allen Company.
The parts of the petition as amended, pertinent to an understanding of the ruling on the general demurrer, are as follows: "The defendants in this action are the E. T. Allen Company, a corporation doing business in said State and county and having an office and an agent therein upon whom service may be had, and the Atlanta West Point Railroad Company, the Western Railway of Alabama, the Louisville and Nashville Railroad, and the Georgia Railroad Company, all corporations, doing business in said State and county, all being lessees of the tracks and equipment of the Georgia Railroad Banking Company, and all having an office and an agent in said county upon whom service may be had, and the Georgia Railroad Banking Company, lessor; that C. H. Phinizy, president of the Georgia Railroad Banking Company of Augusta, Georgia, lessor, has been notified of this suit by mailing him a letter, informing him fully of the pendency of this petition and its nature; that defendants have damaged your petitioner in the amount of $1930 by reason of the facts hereinafter shown; that petitioner was the owner of a 1940 three-quarter ton International truck, which petitioner hired out for use by certain parties; that on or about March 15, 1943, at approximately 10 o'clock a. m., said truck was being loaded at the warehouse of the defendant E. T. Allen Company, petitioner's truck at that time having been hired from petitioner and being operated by one R. C. McKown; that while said truck was being loaded at a point where someone in behalf of E. T. Allen Company had so directed, two box cars, No. *Page 601 CBQ-13285, and No. UP-190562, which were parked at the siding of the warehouse of the defendant E. T. Allen Company, suddenly and without warning began moving down said incline spur-track leading from said siding, crashed into petitioner's truck and caused the damages hereinafter described; that the two box cars were placed on the siding and property of the defendant E. T. Allen Company by the defendant railroad company, at the place designated by the defendant E. T. Allen Company, and that said cars were left insecured as to their stationary condition, in that the hand brakes were not set on said cars, and that the only brake holding said cars in place, in order to prevent their moving down said incline, and onto your petitioner's truck, was the air brakes and one thin board approximately 3/4 of an inch thick, placed under the wheel of said front car by the agents, servants, and employees of the defendants, E. T. Allen Company, and the agents, servants, and employees of the railroad company; that defendant E. T. Allen Company, through its servants and employees, had full and complete knowledge of the presence of the two box cars and by proper care could have avoided their running away down the incline siding; that the air soon escaped out of the air-brake cylinder, leaving said cars without any brakes, and without anything to prevent said cars from proceeding down said incline on to your petitioner's automobile; that the defendants knew, or in the exercise of ordinary care, should have known, that the hand brakes were not set upon the said cars, and that the 3/4-inch piece of board used as a scotch by the defendants would not be sufficient to prevent said cars from proceeding down the said incline and into your petitioner's truck. That the defendants knew, or in the exercise of ordinary care, should have known, that the air would soon escape from the air-brake cylinder, leaving said cars without any brake other than the 3/4-inch scotch placed there by the defendants, its agents, employees, and servants; that the said R. C. McKown, who was having petitioner's truck loaded at the warehouse of the defendant E. T. Allen Company, was without fault in the premises, and could not, by the exercise of ordinary care, have avoided said accident; that the point at which said truck was being loaded was the normal and usual place for loading and unloading of trucks, and that said R. C. McKown had been directed by someone on behalf of the defendant E. T. Allen Company to place said truck *Page 602 at said point of loading; that said box cars were placed at said siding by the railroad companies named herein as defendants, said defendants having leased the equipment and tracks of the Georgia Railway Banking Company, and having control over the manner in which box cars were handled over their lines; that the defendants were negligent in failing to use the proper degree of care and diligence in parking said box cars on the spur-track siding, and in failing to properly brake said cars, and to place the proper blocks under the wheels of the box cars, in order to prevent them from moving down said inclined spur track; that said defendant railroad companies, on many occasions previously had backed box cars onto said siding and were familiar with the track, and in the exercise of ordinary care should have been familiar with the fact that said siding was inclined, and that it would be necessary not only to brake said cars, but to place blocks under the wheels of said cars in order to prevent their moving." One of the defendants, E. T. Allen Company, filed a general demurrer to the petition which, in effect, alleged that, while the plaintiff's automobile truck was parked upon the premises of that defendant, and was being loaded at its warehouse and place of business, and at a point where someone in behalf of the company had directed that it be loaded, two box cars which had been parked on the siding and property of E. T. Allen Company by the defendant railroad companies at a place designated by E. T. Allen Company, rolled down the incline and damaged the plaintiff's truck; that the cars were left insecure as to their stationary condition by the agents, servants, and employees of E. T. Allen Company, and the agents, servants, and employees of the railroad companies; that E. T. Allen Company, through its agents, servants, and employees, had full and complete knowledge of the presence of the box cars and by proper care could have kept them from running away down the inclined siding; and that the defendants knew, or should have known, that the cars were not secured so that they would not move down the incline except by the intervention of some external force not to be anticipated or guarded against.
We think that under the allegations of the petition, if the railroad cars were negligently parked, the petition set out a cause of *Page 603 action against the defendant E. T. Allen Company. Hence, the only question remaining for our determination as to whether the general demurrer was good, is, do the allegations of the petition show that the railroad cars were negligently parked on an incline? Aaron v. Coca-Cola Bottling Co., 143 Ga. 153 (84 S.E. 556); Ga. Ry. Power Co. v. Ryan, 24 Ga. App. 288 (100 S.E. 713); Jolly v. Atlanta, 37 Ga. App. 666 (141 S.E. 223); Brooks v. Ashburn, 9 Ga. 297.
The petition, relative to the negligent parking of the two railroad cars, alleged, in effect, that they were left unattended on an incline either with hand brakes not set, or with air brakes, which, if set, the defendants knew, or in the exercise of ordinary care should have known, would become ineffective in a short time after the cars were thus parked and disconnected from the train or engine; that the only precaution taken to keep said cars from moving down the incline into the petitioner's truck, which was on the premises of E. T. Allen Company by its invitation, and was being loaded at a point where someone in behalf of E. T. Allen Company had directed that it be loaded, was a three-quarter-inch piece of board used as a "scotch" by the defendants, which was not sufficient to prevent said cars from moving down said incline, even though there was no intervention of some external cause not to be anticipated or guarded against. Therefore we think that the judge erred in sustaining the general demurrer of the defendant E. T. Allen Company. See in this connection, Levy v. Stotchik, 132 Misc. 453 (230 N. Y. Sup. 196); Maloney v. Kaplan, 233 N.Y. 426 (135 N.E. 838, 26 A.L.R. 909); Latky v. Wolfe, 85 Cal. App. 332 (259 P. 470); Dornev. Adams, 243 Mass. 438 (137 N.E. 650); Freeman v. Levy,60 Ga. App. 861 (5 S.E.2d 61); Fulton Ice Coal Co. v.Pece, 29 Ga. App. 507 (116 S.E. 57).
Judgment reversed. Broyles, C. J., and Gardner, J., concur.