Atlanta & W. P. R. Co v. Hudson

• Decision Date: 18 July 1907
• Docket Number: (No. 333.)
• Citation: 2 Ga. App. 352,58 S.E. 500
• Court: Georgia Court of Appeals
• Parties: ATLANTA & W. P. R. CO. v. HUDSON.

58 S.E. 500

(2 Ga. App. 352)

ATLANTA & W. P. R. CO.

v.HUDSON.

(No. 333.)

Court of Appeals of Georgia.

July 18, 1907.

1. Evidence—Physical Experiments.

In a suit against a railroad company for killing stock, where the vital point illustrating

the question of negligence is the distance that the stock could have been seen on the track by the engineer, it is competent for the plaintiff to prove the results of experiments made subsequently to the accident, where it appears that the experiments were made at the place of the accident, and upon facts and under conditions substantially similar to those surrounding the accident.

[FA. Note.—For cases in point, see Cent. Dig. vol. 20, Evidence, § 439.]

2. Same.

Physical experiments based on substantially similar facts frequently elucidate the truth in controversy. The closer the similarity in the facts proved and the facts upon which the experiment is based, the greater the probative value of such evidence.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 20, Evidence, § 439.]

3. Trial — Instructions — Credibility of Witnesses.

The charge of the court complained of on the subject of the impeachment of witnesses was a substantial compliance with the sections of the Code.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 46, Trial, § 492.]

4. Railroads — Killing Stock—Diligence Required.

The rule of diligence required of railroads in running cars to prevent killing stock is not modified or altered by the legislation known as the "stock law"; and it is not as matter of law contributory negligence to allow stock to run at large in communities where such stock or fence law prevails.

5. Same—Evidence.

No error of law was committed, and the verdict was warranted by the evidence. (Syllabus by the Court.)

Error from City Court of La Grange; Frank Harwell, Judge.

Action by A. C. Hudson against the Atlanta & West Point Railroad Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Arthur Heyman, Dorsey, Brewster & Howell, and Arthur H. Thompson, for plaintiff in error.

J. R. Terrell and F. P. Longley, for defendant in error.

HILL, C. J. The plaintiff sued the Atlanta & West Point Railroad Company for killing two cows and injuring a third. The jury found a verdict for the plaintiff, and the motion of the defendant for a new trial was overruled. The evidence showed that the cows were killed at or near a private crossing near the town of La Grange. The contention of the defendant was that the engineer could not see the cows in time to stop or control the train, because of the embankment of a cut through which the track ran just before reaching the crossing; that the cows came from around the edge of the cut, and the engineer did not see and could not have seen them until the train was right at them; that he did everything in his power to prevent the accident after seeing the cows. The plaintiff contended that a cow at or near the crossing in question could be seen by the engineer for several hundred yards before reaching thecrossing, and in ample time to stop or get the train under control.

1. The storm center of the evidence was the contested point as to how far a cow could have been seen on the track by the engineer in approaching the crossing at or near which the accident occurred. To illustrate this question, the court permitted the plaintiff to prove the result of certain experiments he and others had made. These experiments consisted in placing a steer at and near the crossing where the cows were killed, and then in determining by sight and measurements how far the steer could be seen up the track in the direction from which the train was approaching, and also by determining in the same manner the distance from the track near the crossing that the steer could be seen by a person standing where the train left the cut before reaching the crossing. The results of these experiments were objected to as evidence by the defendant, on the ground that they were not based upon the actual facts of the case, and were therefore irrelevant. The experiments were made according to the facts as proved by the plaintiff. Experiments made in and out of...