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

• Decision Date: 15 May 1918
• Docket Number: 9383.
• Parties: GEORGIA COAST & P. R. CO. v. SMITH.
• Court: Georgia Court of Appeals

95 S.E. 1017

22 Ga.App. 332

GEORGIA COAST & P. R. CO. v. SMITH.

No. 9383.

Court of Appeals of Georgia, Second Division

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 find that the killing of the mule was due to the negligence of the railroad employés in running the train; and, the trial judge having approved the verdict, this court will not interfere.

Additional Syllabus by Editorial Staff.

Negligence like any other fact, may be established by circumstantial as well as by direct evidence.

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.

Broyles P.J., dissenting.

p>Page Collins & Stanfield, of Reidsville, for plaintiff in error.

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

HARWELL J. (after stating the facts as above).

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 employés 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 Harden Case a mule was killed, and the employés in charge of the train testified that they did all that they could to prevent the killing. There was, however, some evidence of tracks showing that the mule had run down the railroad, and the Supreme Court finally upheld the verdict against the railroad company, the court stating that there was some evidence to sustain the jury's finding. Compare also the following cases: Sou. Ry. Co. v. Lang, 11 Ga.App. 8 74 S.E. 443; Atlantic Coast Line R. R. Co. v. Strickland, 125 Ga. 352, 54 S.E. 168; Sou. Ry. Co. v. Patton, 10 Ga.App. 678, 73 S.E. 1075; Ga. Sou. & Fla. Ry. Co. v. Tyson, 11 Ga.App. 233, 74 S.E. 1098; Atlantic Coast Line Railroad Co. v. Chastain, 15 Ga.App. 707, 84 S.E. 167; Central of Ga. Ry. Co. v. Trammell & McCowan, 114 Ga. 312, 40 S.E. 259 (4). "It was for the jury to determine whether or not the explanation offered in behalf of the defendant completely rebutted...