Two railway companies, hereinafter designated as company A and company B, were sued jointly for damages for personal injuries. The petition alleged substantially the following facts: The two companies maintain and operate a common railroad yard, through which two parallel tracks extend. Plaintiff was a flagman in the employment of company B, and while he was standing between the two tracks, giving signals to the engineer in charge of an engine of that company, an engine of the other company came along the parallel track adjoining the one upon which the engine of company B was moving, and he was struck by the running-board of company A’s engine and injured. The allegations of negligence are: that both companies were *494negligent in maintaining the parallel tracks too near together, and that the servants in charge of the engine of company A were guilty of negligence in using one of the parallel tracks at the time when the adjoining track was being used by company B, and in failing to give the plaintiff any warning or signal of the approach of the engine of company A. There was no allegation that the servants of company B, in charge of its engine, knew of the approach of the engine of company A and failed to warn the plaintiff thereof. The petition was dismissed as to company A, and the general demurrer of company B was overruled. Held: (1) that even if it was negligence to maintain the tracks too close together, this was, relatively to company B, an assumed risk, and was not the proximate cause of the plaintiff’s injury; (2) that no actionable negligence was alleged against company B; and, as to it, the petition should have been dismissed on general demurrer.
Decided September 24, 1912. Action for damages; from city court of Richmond county— Judge W. F. Eve. October 29, 1911. W. K. Miller, for plaintiff in error. Isaac S. Peebles Jr., C. H. & R. S. Cohen, J. C. C. Black, contra.Judgment reversed.