Gaddis v. Southern Ry. Co

• Decision Date: 24 April 1911
• Docket Number: (No. 3,136.)
• Citation: 71 S.E. 7,9 Ga.App. 272
• Parties: GADDIS. v. SOUTHERN RY. CO.
• Court: Georgia Court of Appeals

71 S.E. 7

9 Ga.App. 272

GADDIS.

v.SOUTHERN RY. CO.

(No. 3, 136.)

Court of Appeals of Georgia.

April 24, 1911.

(Syllabus by the Court.)

Railroads (§ 405^*)—Killing Dog on Track —Liability of Road.

There was no error in sustaining the certiorari. A suit cannot be maintained against a railroad company for the negligent killing of a dog, and there is no evidence in this case that the killing was wanton or malicious. The decision is controlled by the rulings of the Supreme Court in Jemison v. Southwestern Railroad, 75 Ga. 444, 58 Am. Rep. 476, and Strong v. Georgia Railway & Electric Company, 118 Ga. 515, 45 S. E. 366.

[Ed. Note.—For other cases, see Railroads, Cent. Dig. § 1399; Dec. Dig. § 405.*]

Error from Superior Court, Floyd County; J. W. Maddox, Judge.

Action by W. H. Gaddis against the Southern Railway Company. Verdict for plaintiff. From an order sustaining the certiorari, he brings error. Affirmed.

J. F. Kelly and Eubanks & Mebane, for plaintiff in error.

Maddox, McCamy & Shumate and Geo. A. H. Harris & Sons, for defendant in error.

RUSSELL, J. Gaddis filed a suit against the Southern Railway Company for damages on account of the killing of a dog by the willful and negligent running of the defendant's train. The jury returned a verdict for the plaintiff, and the defendant filed a petition for certiorari. The judge of the superior court sustained the certiorari, and entered a final judgment in the case in favor of the railway company, and error is assigned thereon.

According to the testimony, there was no eyewitness of the killing of the dog; and though it is perfectly plain that the dog was killed by one of the trains of the railway company, the manner of his death can only be derived from circumstances, and from these circumstances it must be determined whether the railway company is liable to the owner of the dog. One witness heard a freight train of the railway company coming, and it blew several times. He could not see the train, but saw the smoke. He thought something was on the track, and after the train had passed went down to the railroad, and found Mr. Gaddis' dog lying on the side of the track, dead. He saw where the dog had run along the track for about 10 steps, and then saw hair and blood, where it had been struck and dragged by the train. He did not see the train hit the dog, and surmised that the dog must have been running a rabbit. Another witness heard the train blow several times, but did not see it kill the dog. He testified that the train got faster after it blew. Both witnesses testified that the track is straight for about 200 yards from the direction in which the train was going up to where the. dog was killed, and that the engineer could have stopped the train from the time he came into sight of where the dog was killed up to the place of the killing. There was other testimony that the track was straight at the point where the dog was killed. There was also testimony as to the value of the dog.

As we view this evidence, it is not sufficient to support the inference that the death of the dog was due to negligence; and it is certainly insufficient to establish that the dog was wantonly or maliciously killed by the running of the train. Therefore we conclude that the judge of the superior court very properly sustained the certiorari. The dog appears to have run only about 10 steps on the track before he met his death. The testimony that he was running a rabbit seems to be based upon a mere conjecture, for the witness states that he was not at a place...