Ga. Coast & P. R. Co v. Smith

• Decision Date: 15 May 1918
• Docket Number: (No. 9383.)
• Citation: 22 Ga.App. 332,95 S.E. 1017
• Parties: GEORGIA COAST & P. R. CO. v. SMITH.
• Court: Georgia Court of Appeals

22 Ga.App. 332

95 S.E. 1017

GEORGIA COAST & P. R. CO.

v.SMITH.

(No. 9383.)

Court of Appeals of Georgia, Division No. 2.

May 15, 1918.

(Syllabus by the Court.)

The excerpts from the charge of the court complained of were not, when considered with the remainder of the charge, erroneous for any reason assigned.

There was some evidence authorizing the jury to fiud that the killing of the mule was due to the negligence of the railroad employes in running the train; and, the trial judge having approved the verdict, this court will not interfere.

Broyles, P. J., dissenting.

(Additional Syllabus by Editorial Staff.)

Error from Superior Court, Liberty County; W. W. Sheppard, Judge.

Action by Bert Smith against the Georgia

Coast & Piedmont Railroad Company. Judgment for plaintiff, motion for new trial overruled, and defendant brings error. Affirmed.

Bert Smith sued the Georgia Coast & Piedmont Railroad Company for damages on account of the killing of his mule by a train of the defendant. The jury trying the case found for the plaintiff. The railroad company excepts to the overruling of its motion for a new trial based upon the general grounds and grounds which were merely amplifications of those grounds, and upon special grounds alleging error in the following excerpts from the charge of the court:

"Of course, when the railroad company makes that appear [referring to its using all ordinary and reasonable care and diligence to avoid the injury], why then that presumption is removed, and the burden will again be shifted to the shoulders of the plaintiff to make it appear that the railroad company was negligent in the manner and form alleged in the petition."

"If they were negligent in not stopping, and the evidence disclosed that some defective machinery about the engine or cars prevented the train from being stopped, that would be the same thing as if it had been alleged."

"Then see whether or not that presumption raised against the company has been rebutted by any of the testimony introduced for the plaintiff or the defendant, and if it does, then look further to the evidence and see whether the evidence discloses, by a preponderance of the evidence, that the defendant was negligent as charged in this petition. If the evidence discloses that fact, why then, even though the presumption of negligence cast by the mere fact of the injury may have been overcome, the plaintiff would be entitled to recover, if you find evidence showing that the defendant was negligent as alleged in the petition."

Collins & Stanfield, of Reidsville, for plaintiff in error.

Way & Burkhalter, of Reidsville, for defendant in error.

HARWELL, J. (after stating the facts as above). [2, 3] Where stock is killed by the running of the cars of a railroad company, and there is some evidence other than the presumption against the company, authorizing the jury to find that the employes in charge of the train were negligent, and that the killing was the result of that negligence, a verdict against the railroad company should not be disturbed. Negligence, like any other fact, may be established by circumstantial evidence as well as by direct evidence. In Southern Railway Co. v. Carter, 139 Ga. 237, 77 S. E. 21, Mr. Justice Beck said:

"In passing upon the question as to whether or not the presumption of negligence which arose upon proof of the killing of the stock in the operation of the defendant's train had been overcome, the jury had the right to consider all the circumstances proved in the case, as well as the direct testimony given by the witnesses for the plaintiffs and the defendant. Whether the killing of the stock was the result of a failure to exercise due care and diligence or not was one for the jury; and there being some evidence to support their finding contrary to the contention of the defendant, this court should not disturb it on the ground that the verdict is contrary to the evidence."

In Central of Ga. Ry. Co. v. Dozier, 117 Ga. 793, 45 S. E. 67, it was said:

"In a suit for damages for killing stock the plaintiff offered no eyewitness to the transaction. While weak and unsatisfactory, the testimony as to the tracks of the animal and other physical facts was sufficient, when aided by the presumption of negligence, to warrant a verdict in favor of the plaintiff, notwithstanding the evidence of the engineer and fireman tended to show the exercise of ordinary care and diligence."

See, also, Central of Ga. Ry. Co. v. Harden, 113 Ga. 455, 38 S. E. 949; Id., 114 Ga. 548, 40 S. E. 738.

In the...