Holmes v. Ga. Power Co

• Decision Date: 15 January 1932
• Docket Number: No. 21508.,21508.
• Citation: 44 Ga.App. 588,162 S.E. 403
• Parties: HOLMES. v. GEORGIA POWER CO.
• Court: Georgia Court of Appeals

44 Ga.App. 588

162 S.E. 403

HOLMES.

v.GEORGIA POWER CO.

No. 21508.

Court of Appeals of Georgia,

Division No. 2.

Jan. 15, 1932.

Error from City Court of Macon; C. H. Hall, Judge.

Action by Mrs. Melvin Holmes against the Georgia Power Company. There was a judgment for defendant, plaintiff's motion for new trial was overruled, and plaintiff brings error.

Reversed.

Hallie B. Bell and Julian P. Urquhart, both of Macon, for plaintiff in error.

Ellis & Fowler, of Macon, for defendant in error.

Syllabus Opinion by the Court.

STEPHENS, J.

1. The presumption of negligence on the part of a railroad company which arises upon proof of an injury inflicted by the operation of locomotives or cars of the company, whether it arises by virtue of the provisions of the act approved August 24, 1929 (Ga. Laws 1929, p. 315), or of section 2780 of the Civil Code of 1910 when construed in conformity to the decision of the Supreme Court of the United States in Western & Atlantic Railroad v. Henderson, 279 U. S. 639, 49 S. Ct. 445, 73 L. Ed. 884, vanishes upon the introduction of testimony in rebuttal of this presumption, and the question of negligence is then one for the jury from all the evidence; and the burden rests upon the plaintiff to establish the alleged negligence of the defendant by a preponderance of the evidence. See, in this connection, Seaboard Air Line Railway Co. v. Fountain (Ga. Sup.) 160 S. E. 789; Barrett v. Southern Railway Co., 41 Ga. App. 70 (7), 151 S. E. 690; Georgia Railway & Power Co. v. Shaw, 40 Ga. App. 341, 149 S. E. 657. If in Killian v. Georgia Railroad & Banking Co., 97 Ga. 727, 25 S. E. 384, Georgia Southern & Florida Railway Co. v. Young, 119 Ga. 513, 46 S. E. 644, Murphy v. Georgia Railway & Power Co., 146 Ga. 297, 91 S. E. 108, Lime-Cola Bottling Co. v. Atlanta & West Point Railroad Co., 34 Ga. App. 103, 128 S. E. 226 and other decisions of the Supreme Court and of this court rendered prior to the date of the decision in the Henderson Case and the passage of the act of 1929, there appears any ruling to the contrary, such ruling has been superseded by that decision and the provisions of that act.

2. Upon the trial of a suit against a street railway company, in which the plaintiff sought to recover damages for personal injuries alleged to have been sustained by her when thrown to the ground from the steps of a street car by a negligent jerk or movement of the car when she was in the act of alighting, where there was evidence that the car did not make a sudden jerk or movement and that the plaintiff did not fall from the car, but stumbled and fell after she had safely alighted from the car and was proceeding on her way, the presumption of negligence, as provided by the act of 1929, or by section 2780 of the Civil Code of 1910, which had arisen against the defendant upon the introduction of evidence that the plaintiff was injured by the operation of the defendant's car, vanished and disappeared, and the question of negligence became one for determination from all the evidence, without reference to the statutory presumption, and the court did not err in charging the jury that the burden rested upon the plaintiff to sustain the allegations of the petition by a preponderance of the evidence.

3. Where, in a suit to recover damages for personal injuries alleged to have been caused by the negligence of the defendant, the evidence presents an issue of fact as to whether the plaintiff was injured by the negligence of the defendant, the failure of the plaintiff to...