evidence showed that it had been lost or destroy-12. SALES 48-VALIDITY OF CONTRACT-LEed and could not be found, and it was admissible to go into the contents of the original fi. fa. by oral testimony.

Error from City Court of Carrollton; 382), and, as was said by Judge Lumpkin in James Beall, Judge.

Leva, 16 Ga. App. 7, 84 S. E. 222, distinguish- | into the atmosphere, and that these gases ed it from this case.

(2) "Because neither said petition nor any KEY V. ARMOUR FERTILIZER WORKS count thereof states facts sufficient to constitute

(Court of Appeals of Georgia. July 27, 1916.) cause of action in favor of the plaintiff against

(4) "Because in said petition and in each count thereof there is an improper joinder of Where two distinct corporations, through parties, for that the Armour Fertilizer Works, their respective separate manufacturing plants, if liable at all, is liable only for its own acts discharge noxious and poisonous gases into the and for the damages resulting therefrom, and atmosphere, which invade the premises of adja- the Morris Fertilizer Company, if liable at all, cent residents and cause an actionable nuisance, is liable only for its own acts and for the damthe corporations are not jointly liable for damages resulting from such acts, and neither deages, where there is no common design or con- fendant is liable for the acts of its codefendcert of action, but each is liable for its propor- ant or the damages resulting from the acts of tion of the damages only. its codefendant."

Geo. F. Gober and W. I. Heyward, both of Atlanta, for plaintiff in error. Anderson & Rountree and R. W. Crenshaw, all of At-cause an actionable nuisance, they are not jointlanta, for defendants in error.

to each other operate their respective and sepa"Where two distinct corporations in proximity rate plants for reducing and converting copper

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

ore into metal nuggets or commercial copper, from each of which are emitted immense volumes of noxious, foul and poisonous smoke and gases, which afterwards indistinguishably mingle, commingle, and intermingle in a cloud of noxious, deadly, and poisonous vapors, creating an actionable nuisance, but there is no common ownership or operation of the plants, no community of interest, no common design, purpose, concert, or joint action, a suit by an adjoining or adjacent property owner against them jointly for damages caused by their wrongful acts so separately committed is not maintainable."

See, also, to the same effect, 38 Cyc. 484, 485; Schneider v. City of Augusta, 118 Ga. 610, 45 S. E. 459; Howe v. Bradstreet Co., 135 Ga. 564, 69 S. E. 1082, Ann. Cas. 1912A,

214.

It is true that the Supreme Courts of West Virginia, Indiana, Texas, and possibly some other states, have made contrary rulings, to the effect that under such circumstances independent tort-feasors are jointly liable. We think, however, that this view is unsound and that the weight of authority is against it. At any rate, the decisions of our own Supreme Court, by which we are bound, are, in principle at least, to the effect that in such cases a joint action against independent tort-feasors will not lie.

It is unnecessary to consider the assignments of error contained in the cross-bill of exceptions.

Judgment affirmed on the main bill of exceptions; cross-bill dismissed.

(18 Ga. App. 490)

ZACHRY v. MAYOR, ETC., OF CITY OF
MADISON. (No. 7076.)

(Court of Appeals of Georgia. July 29, 1916.)

(Syllabus by the Court.)

1. ELECTRICITY

19(5)—INJURIES-CONTRIB

UTORY NEGLIGENCE EVIDENCE.

as a lineman in close proximity to the electric light wires of the city, and also as to his ig norance of the defective condition of said wires and the imperfect insulation thereof, were not only unsupported by testimony, but were in effect directly contradicted by the evidence of the plaintiff himself and by other evidence in his behalf.

[Ed. Note.-For other cases, see Electricity, Cent. Dig. § 11; Dec. Dig. 19(5).] 2. TRIAL 159-NONSUIT-MOTION TO DIS

MISS.

the plaintiff, upon motion of the defendant's
The court, at the close of the testimony for
counsel, ordered and adjudged that the case be
dismissed and the defendant discharged at the
plaintiff's cost. The motion to dismiss was bas-
ed upon the ground that the petition set out no
cause of action, and that the evidence showed
no right to recover. By the evidence in behalf
of the plaintiff, his right to recover was disprov-
ed by proof of undisputed defensive facts show-
ing such failure to exercise due care on his part
as precluded any recovery. Under this view, a
nonsuit would therefore have been proper, and
this we construe in effect to have been the judg-
phine Mills, 119 Ga. 448, 46 S. E. 674.
See Evans v. Jose-
ment of the lower court.
[Ed. Note.-For other cases, see Trial. Cent.
Dig. §§ 341, 359-367; Dec. Dig. 159.]

Error from City Court of Madison; K. S.
Anderson, Judge.

Action by W. R. Zachry against the Mayor, etc., of the City of Madison. Judgment for Afdefendant, and plaintiff brings error. firmed.

Middlebrooks & rennington and T. H. Burruss, Jr., all of Madison, and Samuel H. Sibley, of Union Point, for plaintiff in error. E. H. George, of Madison, for defendant in error.

WADE, C. J. Judgment affirmed.

(18 Ga. App. 492)

OLDS-OAKLAND CO. v. ROUNTREE.

(No. 7086.)

Where a lineman of a telephone company, who had enjoyed several months' experience in its service in that capacity, aged about 20 years, and not lacking in intelligence, was injured by contact with electric light wires belonging to a (Court of Appeals of Georgia. July 29, 1916.)

municipality, which had been strung on poles in close proximity to the poles of the telephone company, and from which the insulation had been apparently worn off near the telephone pole which the lineman climbed, as appears from his testimony and other testimony in his behalf, he knowing, or being able to know by ordinary diligence, that the wires were so exposed, he was not entitled to recover from the municipality on account of such injuries. Columbus Railroad Co. v. Dorsey, 119 Ga. 363, 46 S. E. 635; Dorsey v. Columbus Railroad Co., 121 Ga. 697,

49 S. E. 698.

(Syllabus by the Court.)

1. EMPLOYMENT CONTRACT-PROPER INSTRUC

TIONS.

The question involved in the trial of this case in the lower court was as to the nature and the plaintiff and the defendant, under and by character of the contract of employment between virtue of which the account sued upon accrued. The trial judge properly submitted the issues inthere is no merit in the exceptions to various volved for determination by the jury, and portions of his charge, or in the assignments of error based upon his refusal of several written requests to charge.

2. VERDICT-EVIDENCE-NEW TRIAL.

The evidence sufficiently supported the verdict, and the court did not err in overruling the motion for a new trial.

(a) From the testimony of the plaintiff himself, it is manifest that he failed to exercise ordinary care to prevent the injury resulting from the improper insulation of the electric lighting wires, notwithstanding he had sufficient knowledge of the danger to be expected from the contact with them, and his own admission that he had been warned by his employer to "look out" for worn insulation, and other testimony to the effect that the defective insulation was easily apparent at the point where he was injured. Action by D. W. Rountree against the Olds(b) The allegations in the petition of the plaintiff, to the effect that he was ignorant of the Oakland Company. Judgment for plaintiff, danger incident to the performance of his duties and defendant brings error. Affirmed.

Error from City Court of Atlanta; H. M. Reid, Judge.

(Court of Appeals of Georgia. July 29, 1916.) (Court of Appeals of Georgia. July 19, 1916.)

(Syllabus by the Court.)

1. FINDING of Court-EVIDENCE.

There was evidence to support the finding of the court against the defendant on his special plea in bar.

(Syllabus by the Court.)

RAILROADS ~355(1)—INJURIES ON TRACKS—
SWITCHYARD.

A railway company is entitled to the exclusive use of the tracks in its switchyard, and there can be no implied license to the public to

2. MOTION FOR NEW TRIAL-GROUNDS WITH-use such tracks, inconsistent with this exclu

OUT MERIT.

There is no merit in any of the grounds of the motion for a new trial, and the evidence supported the verdict.

Error from Superior Court, Floyd County; Moses Wright, Judge.

sive right. There was no evidence from which the jury would have been authorized to find that the point where the plaintiff was injured was not within the limits of the switchyard proper.

[Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 1220, 1223, 1227, 1235; Dec. Dig.

Proceeding by the State against Will Mar-355(1).] tin. Judgment for the State, and defendant brings error. Affirmed.

Henry Walker, of Rome, for plaintiff in W. H. Ennis, Sol. Gen., of Rome, for the State.

error.

WADE, C. J. Judgment affirmed.

(18 Ga. App. 504)

ROBERTS v. STATE. (No. 7579.) (Court of Appeals of Georgia. July 29, 1916.)

(Syllabus by the Court.)

Error from City Court of Savannah; Davis Freeman, Judge.

Action by Eugene Wright against the Atlantic Coast Line Railroad Company. There was a judgment for defendant, and plaintiff brings error. Affirmed.

Oliver & Oliver, of Savannah, for plaintiff in error. P. W. Meldrim, of Savannah, for defendant in error.

WADE, C. J. The plaintiff was injured while attempting to cross one of five tracks used in a well-defined switchyard of the railway company, by the backing of one of the

CRIMINAL LAW 1092(8), 1144(19)-BILL OF defendant's trains. No lookout was kept at EXCEPTIONS-SETTLEMENT-PRESUMPTIONS.

The date of the judge's certificate to the bill the rear of the train, and no warning was of exceptions will be presumed to be the date on given by bell, whistle, or otherwise, and the which it was tendered to him, where it does not evidence failed to show that any employé of affirmatively appear, from the bill of exceptions the railway company actually saw the plainor from the certificate thereto that it was ten- tiff at or before the time of the injury. There dered on a different date. To give this court jurisdiction in a criminal case, the bill of ex- was a safe and reasonably convenient subceptions must be tendered within 20 days from way provided for the use of pedestrians and the rendition of the judgment complained of; and where the date on which it was tendered others, so that they might travel in safety does not affirmatively appear, and the recital under the several tracks of the railway comin the bill of exceptions that it was tendered pany at the place where the injury occurred; "within the time provided by law" is qualified but the plaintiff and some others were accusby the additional words, "and within 30 days of the entry of the order overruling and denying said motion for a new trial," and the certificate of the judge is dated 25 days after the rendition of the judgment, the jurisdiction of this court to entertain the writ of error is not affirmatively shown. Wallace v. State, 16 Ga. App. 30, 84 S. E. 486.

Under this ruling the writ of error in this case is dismissed.

[Ed. Note.-For other cases. see Criminal Law, Cent. Dig. §§ 2774, 2781, 2855, 2856, 2861, 2901, 3037; Dec. Dig. 1092(8), 1144(19).]

tomed to pass, for their convenience only, and not from necessity, over the tracks in the switchyard. The plaintiff knew that the point where he attempted to cross was within the limits of the switchyard. In response to the question, "You knew that was a switchyard, you knew Mr. Harvey was switching cars in that yard?" he testified as follows:

"Five tracks go on out through Anderson street, way on out. The switch engine goes on down from Waldburg back to Liberty.

Error from Superior Court, Burke Coun-I had been used to cross there. I had seen trains being switched across before."

ty; H. C. Hammond, Judge.

Harris Roberts was convicted of crime,

and brings error. Dismissed.

The following question was propounded to the plaintiff:

"I know Mr. Harvey [the engineer in charge of the switch engine at the time the injury occurred]. He is switch engineer there."

The plaintiff endeavored to cross on planking laid down between the tracks and over the subway to protect those using the subway in passing under the switchyard.

The case turns altogether upon the fact that the injury occurred in a switchyard, and not upon a main track of the defendant company, either outside af the switchyard or partly within the yard limits, and occasionally used in connection with the switchyard, as in Williams v. Southern Railway Co., 11 Ga. App. 305, 75 S. E. 572. In the case of Western & Atlantic R. Co. v. Watkins, 14 Ga.

App. 388, 80 S. E. 916, this court said:

"The homicide did not occur in a switchyard, and the rule that there can be no implied license to use the tracks of a railway company in its switchyard has no application.'

In Binion v. Central of Ga. Ry. Co., 12 Ga. App. 663, 78 S. E. 132, this court also said, in construing the case of Wright v. Southern Ry. Co., 139 Ga. 448, 77 S. E. 384:

"The evident purpose of the Supreme Court, in the case cited above, was to limit the switchyard doctrine to switchyards proper, and to tracks which are constantly being used as switch tracks. They doubtless did not intend to hold, nor do we, that a person could have an implied license to use a track in a switchyard proper, which was being constantly used for switching purposes, merely because it was occasionally used as a main line."

cate that it was a part of the switchyard."

In the present case there were five tracks, with their switching connections, and the tions going on, and the car which injured plaintiff actually saw the switching operathe plaintiff was actually pushed backwards by a switch engine in the charge of a switch

ing engineer.

There is no merit in the contention of the

plaintiff that he had an express license to enter the switchyard, based on a conversation the defendant, who told the plaintiff to come out to the shops the morning the injury occurred. It does not appear that the boiler maker, if empowered to license the plaintiff, authorized or directed him to cross the switch

between him and the head boiler maker of

yard where he was injured, in order to take the train, which stopped at a different place entirely, to go out to the shops, not located in the switchyard, but some distance therefrom. The plaintiff was not at the time of the injury an employé of the defendant, for he testified, "They had laid me off from my job." It appears further, from his testimony, that during the time he worked for the defendant he habitually boarded the train which conveyed him to the same shops, either at Bolton or Huntingdon streets. The burden was upon the plaintiff, and there is no evidence to show that the place where the injury occurred was a place to board the train he expected to take to convey him to the shops, or was

In the Williams Case, supra, this court a place where this train usually stopped; said:

but, to the contrary, his evidence showed, as above stated, that the stopping places for that train were at Bolton and Huntingdon streets.

"This doctrine [the switchyard doctrine] is well settled by the decisions of this court and the Supreme Court. There can be no implied licens to the public to use switchyards. Georgia R. Co. v. Fuller, supra [6 Ga. App. 454, 65 From the testimony it appears that oft-reS. E. 313]; Waldrep v. Georgia R. Co., 7 Ga.peated, if not continuous, efforts were made App. 342 [66 S. E. 1030]; Grady v. Georgia R. Co., 112 Ga. 668 [37 S. E. 861]. This rule by the railway company to protect people is applicable to switchyards in fact; switch- from trespassing upon its tracks in this yards interlaced with tracks, used constantly for the storing and switching of cars; switchyards where danger signals are manifest and speaking. As to these the companies have the right to the exclusive use, and the public are affirmatively warned to keep out. But a railroad company cannot use its main track for switching purposes as occasion may require and thus make the one track a part of the switchyard. If so, they could have switchyards extending for miles with nothing to put the public on notice of their character. In Grady v. Georgia R. Co., supra [112 Ga. 668, 37 S. E. 861], it is said: 'In a railroad yard in which there are several tracks in continuous use for the purpose of storing and switching cars and making up trains and the like, and where the dangerous character of the place is manifest and obvious, there can be no implied license to

switchyard, and in furtherance of these efforts a fence had time and again been constructed there by the company, and a policeman was stationed at times at this point to prevent or warn against such trespass. From an examination of the photographs which appear in the record, it is plainly apparent that a safe and convenient passage under the tracks had been provided by the defendant, and that the open spaces between the ties of the tracks in the yard overhead, and between the tracks themselves, must have been covered with the planking, shown in one of the photographs, for the primary, if not the sole, purpose of protecting