Atlantic Coast Line R. Co. v. Chastain

• Decision Date: 03 February 1915
• Docket Number: 5826.
• Citation: Atlantic Coast Line R. Co. v. Chastain, 15 Ga. App. 707, 84 S. E. 167 (Ga. App. 1915)
• Parties: ATLANTIC COAST LINE R. CO. v. CHASTAIN.
• Court: Georgia Court of Appeals

84 S.E. 167

15 Ga.App. 707

ATLANTIC COAST LINE R. CO. v. CHASTAIN.

No. 5826.

Court of Appeals of Georgia

February 3, 1915

Syllabus by the Court.

Where the killing of the plaintiff's cow by a train of the defendant was shown, and the plaintiff relied entirely upon the legal presumption of negligence against the railroad company, a recovery was authorized, unless this presumption was fully overcome by the proof.Where there were seeming conflicts or contradictions, as to material facts in the case, between the opinionative testimony of the defendant's engineer and the physical facts as disclosed by his testimony, and where Chastain, the owner of the cow testified that the defendant's track was straight for several hundred yards from where the cow was killed, back toward Albany, and that the train coming from Albany had killed the cow, and that the right of way of the defendant at this point was such that the cow could have been readily seen for several hundred yards by the engineer of the train, and where it appeared from the testimony of the engineer of the defendant, who sought to explain the killing and to show the absence of negligence, that he made no effort to stop the train, because he thought it impossible to do so, and that although he saw the cow when it was 50 or 60 yards distant it was so close that, in his judgment, it was impossible for him to do anything toward stopping the train before reaching the point where the cow was, and that he did not blow the whistle, or cut off the steam, or make any attempt to keep from hitting the cow, because when he first saw the cow he thought it useless to make an effort to keep from striking it, held, it was for the jury to determine whether or not the explanation offered in behalf of the defendant completely rebutted the presumption of negligence created by the killing of the cow, and they might legitimately have concluded that the explanation of the killing was insufficient; the credibility of the witnesses as well as the question of negligence being exclusively for them.

Error from Superior Court, Thomas County; W. E. Thomas, Judge.

Action by S. A. Chastain against the Atlantic Coast Line Railroad Company.Judgment for plaintiff, and defendant brings error.Affirmed.

Bennet & Branch, of Quitman, and J. H. Merrill, of Thomasville, for plaintiff in error.

Fondren Mitchell, of Thomasville, for defendant in error.

BROYLES J.

S. A Chastain sued the Atlantic Coast Line Railroad Company in a justice's court for the value of a cow killed by the running of one of its trains.The jury found a verdict in his favor, which, upon certiorari, was sustained by the judge of the superior court; and the defendant excepted to the judgment overruling the certiorari.The only question involved is whether, under the facts and the law applicable thereto, the recovery was authorized.

It is insisted by the plaintiff in error that the presumption of negligence raised by the killing was fully rebutted by the evidence of its engineer, who testified that he was the engineer operating the train that killed the cow; that at the time the cow was struck it was about dark (a little after 6 o'clock on November 6, 1912); that he was running his engine on the regular passenger train from Albany to Thomasville; that the engine was equipped with the best headlight in regular use on passenger trains, and that by its light he could have seen from 15 to 20 feet beyond the sides of the track; that as he was approaching this place his fireman was firing the engine and was not looking out; that he(the engineer) was sitting on his engineer's seat and was looking out, but did not see the cow until the engine was from within 50 or 60 yards of her, and it was so close that, in his judgment, it was impossible for him to do anything toward stopping the train before he got to where the cow was; that he made no effort to stop the train, because he thought it was impossible to do so, nor did he blow his whistle, or cut off his steam, or make any attempt to keep from hitting the cow, because, when he saw the cow, he thought it useless to make an effort to keep from hitting it; that when he saw the cow she was not where the engine could have struck her, but that, after reaching the end of his run (Thomasville)he discovered cow hair on one of the projecting parts of the engine, and the next morning, as he was going upon his run, he saw the cow lying on the track and was satisfied that the projecting part of his engine had killed her.

S. A. Chastain, owner of the cow, testified that the defendant's track was straight for several hundred yards from the point where the cow was killed back toward Albany, and that the train which killed the cow was coming from Albany; that the right of way of the defendant at this point was such that the cow could have been readily seen for several hundred yards by the engineer of the train going toward Thomasville.

The defendant waived any issue as to the fact that the cow was killed by the running of the train, that it was worth the amount of the judgment, that it was owned by the plaintiff, or as to anything else testified by the plaintiff, and assigned error solely upon the ground that, under the circumstances as outlined by the testimony of the engineer, the defendant was not liable for the killing of the cow.

The facts in the instant case are different from those in any of the cases cited by the learned counsel for plaintiff in error.

In the case of Macon & Augusta R. Co. v. Vaughn,48 Ga. 465, it appeared affirmatively from the evidence (without contradiction) that there was no negligence or want of care on the part of the railroad company.There a mule was killed by the railroad company, and the Supreme Court said:

"The evidence of the absence of any negligence in running the train at the moment of the killing of this mule is very strong, and is wholly uncontradicted.* * * It was night, and the driver testifies positively to the use of the greatest care.A railroad company is not liable for an unavoidable accident, even under our statute in relation to stock.If, with every reasonable precaution, proper lookout, and proper speed and proper attention, an unavoidable damage ensues, a company which has by law a right, under such precautions, to run its trains, is not responsible."

In Georgia Southern & Florida R. Co. v. Sanders,111 Ga. 128, 36 S.E. 458, the cow came suddenly upon the track, in front of the engine, and the engineer put on his brakes and otherwise used all ordinary care and reasonable diligence to stop the train.

In Macon, Dublin & Savannah R. Co. v. Hamilton, 9 Ga.App. 254, 70 S.E. 1126, a cow grazing near the railroad track suddenly ran on the track, a few feet in front of the engine, which was running at a speed of from 25 to 30 miles an hour, and was killed.The undisputed evidence of the engineer and the fireman in that case fully rebutted the statutory presumption of negligence.

In Macon & Birmingham R. Co. v. Revis,119 Ga. 332, 46 S.E 418, the train was running 35 or 40 miles an hour, and the engineer first saw the horse about 25 or 30 feet from the track. ...