I think that the court erred in overruling the motion to dismiss the action. The original petition alleged that the main-line track was separated from the sidetrack only sufficiently to permit cars to pass on said tracks without striking each other, and that, while the deceased was attempting to enter one of the camp cars on the sidetrack, he was hit by a southbound train operating on the main line. Under this original petition it is clear that the negligence relied on for recovery was: (1) stationing the camp cars so close to the mainline track, (2) placing the camp cars so that employees could enter only from the east side, next to the main-line track, (3) failure to warn the deceased, (4) excessive speed, and (5) failure to keep a lookout ahead, etc. By amendment the petition alleged that the deceased was sucked into the side of the train. This amendment had one of two effects: it changed the purported cause of action from the one originally alleged into one *Page 743 based solely on the theory that there was room enough between the train and the cars for deceased to stand, and that the passing train sucked him into its side; or it sought to add a second cause based on the suction theory, in addition to the original cause. Whether two causes of action were attempted or only one, the action should have been dismissed on the motion in the nature of a general demurrer. If the petition attempted to state two causes of action, as it was amended, the cause of action based on the theory that the camp cars were so close to the main line that a train on the main line could barely pass without striking the camp cars, the deceased knew the situation as well or better than anyone else, and he was guilty of the grossest kind of negligence in attempting to enter a camp car when a train was approaching on the main line when he did not have time to enter safely before the train arrived. The view that the petition sought to set forth two theories of the death is held only by the writer. The majority of the court hold the opinion that the amended petition seeks to recover on the suction theory alone. Since the majority so rule, the only authoritative ruling that this court may make is on the suction theory. Under the ruling in Southern RailwayCo. v. Young, 20 Ga. App. 362 (93 S.E. 51), the petition does not set forth a cause of action on the theory that the deceased was sucked into the side of the train. The petition as thus construed shows that there was standing room between the train and the camp cars, and that the only alleged actionable negligence was the failure to warn the deceased and the excessive speed of the train. In the Young case, supra, it was held: "As suggested in the brief of able counsel for the plaintiff in error, the theory that the injury resulted from the fact that the plaintiff was sucked under or against the engine or cars must be regarded from one of two standpoints, to wit: either this happening was likely to occur under the circumstances alleged to have existed at the time and place of the injury, in which event a man of ordinary prudence would be bound to guard against; or it was an unusual and extraordinary occurrence [which was] not likely to happen, and which a man of ordinary prudence would not be bound to guard against. If it was something likely to happen, the plaintiff himself should have been on guard against the occurrence, as it was the result of a *Page 744 natural law which would be consequently a matter of common knowledge. If the occurrence was not likely to happen and was unusual and extraordinary, the defendant company could not be charged with negligence in not making an effort to stop the train after those in charge of it saw or could have seen the plaintiff walking by the side of the track, but not near enough to it to be struck by the passing engine or cars. If, under the operation of natural laws, those in charge of the train should have anticipated that the plaintiff would probably be sucked under, in, or close up to, or against the train, then the plaintiff would likewise have been bound to anticipate the same result. And if the accident was unusual and extraordinary, and the plaintiff in the exercise of ordinary care and diligence for his own safety could not have anticipated such result, neither could those in charge of the train be expected to anticipate this result." See also Moore v. Seaboard Air-Line Ry. Co., 30 Ga. App. 466 (7) (118 S.E. 471). We are bound by the Young decision, supra, until it is overruled. I do not think that the Young case is distinguishable in principle from this case. In the Young case the injured person was expecting the train. In this case he was standing beside the train while the engine and several cars passed by him. The deceased had to know the train was there and warnings wouldn't have helped him one bit. The presence of the camp cars makes the questions more difficult and complex. The principle of who was bound to know what is the same. The greater speed in this case is irrelevant. The court in the Young case was ruling on the principle of suction, and treated it as being a fact even at 30 to 35 miles an hour. If the court in the Young case had ruled that there is no suction at 30 to 35 miles an hour there might be some basis for saying it is distinguishable.
I concur in the other rulings and the judgment.