concurring specially. I concur in the first division of the opinion, and concur in the result reached in the second division, but not for the reasons given therein.
The plaintiff employee alleged that at the time he received his injury (when he touched the coupling equipment and a piece of it fell on his foot) he was engaged in the unloading of the car. No one contended and there is no allegation that he was using the coupling equipment for the purpose of unloading the car. The majority opinion is based upon the conclusion that the employee was not engaged in unloading the car at the time he touched the coupling which fell upon his foot or that he as a matter of law could not have been. The petition alleges that he was, and unless we can take judicial cognizance of the contrary, this must be accepted as trae for the purpose of passing upon the general demurrer to the petition. The law requires that the unloading equipment and the car be reasonably safe. I would prefer placing the ruling sustaining the trial judge and dismissing the petition on the general demurrer on other grounds. “It is the duty of the ultimate carrier to inspect such a car and ascertain whether it and its unloading devices are in a reasonably safe condition, and if, on examination, the car or any part of its unloading appliances is found to be dangerously defective, it is its duty to make the necessary repairs, or to notify the consignee of such dangerous defects.” Roy v. Ga. R. & Bkg. Co., 17 Ga. App. 34, 35 (2b) (86 SE 328).
Where the only negligence alleged is the placing of cars for unloading, “the coupling of which contained no pin to fasten said couplings together,” and in failing to notify the employee of the consignee or his foreman that the cars “contained no pins in the coupling thereof” and there is no allegation that the defendant failed to inspect said cars, and no allegation that the defect was discoverable by the exercise of ordinary care in inspecting the cars, no breach of duty imposed by law under the facts of the case as alleged is shown by the pleadings. For these reasons there was no error in the sustaining of the general demurrers to the petitions in the above cases, both of which contain the identical allegations, and in dismissing them.