Macon & B. R. Co v. Revis

• Decision Date: 12 January 1904
• Citation: 46 S.E. 418,119 Ga. 332
• Court: Georgia Supreme Court
• Parties: MACON & B. R. CO. v. REVIS.

46 S.E. 418

119 Ga. 332

MACON & B. R. CO.

v.REVIS.

Supreme Court of Georgia.

Jan. 12, 1904.

RAILROADS—KILLING STOCK—PRESUMPTIONS —EVIDENCE.

1. As has heretofore been ruled by this court in a number of cases, while the law raises against a railway company a presumption of negligence whenever the fact is made to appear that live stock was killed by the running of its cars, yet this presumption cannot withstand positive and uncontradicted evidence that the company's employes exercised ordinary diligence, both as regards maintaining a lookout for stock and endeavoring to avoid injury to the same when discovered; and relevant testimony in behalf of the company on the part of its servants cannot, if they be unimpeached, arbitrarily be disregarded by court or jury, upon the assumption that it is not, in point of fact, in accord with the truth.

¶1. See Railroads, vol. 41. Cent. Dig. § 1581.

(a) The facts of the present case bring it within these rulings, and the court below erred in not granting the defendant company a new trial.

(Syllabus by the Court.)

Error from City Court of La Grange; W. T. Tuggle, pro hac Judge.

Action by C. H. Revis against the Macon & Birmingham Railroad Company. Judgment for plaintiff. Defendant brings error. Reversed.

Longley & Longley, for plaintiff in error.

E. R. Bradfield, Jr., for defendant in error.

TURNER, J. 1. The plaintiff below, in support of his contention that the defendant railway company was liable to him in dam ages for the negligent killing of his horse, introduced testimony which tended to establish the following state of facts: The horse was killed in a cut some 10 feet deep at a point on the railroad track 590 feet below a crossing "on an upgrade." A few moments before the train by which the horse was killed approached this crossing he was seen "standing about 30 feet from the track, " and when the train reached the crossing the horse "jumped on the track at the mouth of the cut, " 285 feet below the crossing, and ran in this cut, in front of the train, a distance of 305 feet, before being struck. The horse was killed on a curve, which extended a considerable distance above the crossing, and therefore could not have been seen by the engineer until about the time the train arrived at the crossing, at which time "the danger signal" was blown. The "local train, " and perhaps others, had been known to stop within a distance of 590 feet from this crossing, which was near a station; but the train which ran over the horse was "the fast train, " which did not stop at that station, and had never been seen to come to a stop within that distance. The railway company undertook to overcome the prima facie case thus made out by the plaintiff, and to this end called as witnesses the engineer and conductor in charge of its train on the occasion above mentioned. The engineer testified: "The train was on schedule time, and running at 35 or 40 miles an hour. I first blew the whistle for the crossing. As the engine turned the curve, I saw the horse standing off about 25 or 30 feet from track. Nothing to indicate his coming toward the track. Just about the time I reached the crossing, the horse walked to the edge of the cut and jumped down on the track. I immediately shut off steam, applied the emergency brakes, and sounded the danger or cattle alarm. It was on a curve to the left. I was looking to the front, and the brakes worked perfectly. I did all in my power to stop the train, using every appliance on the engine. I did not reverse the engine. Engines are no longer reversed since the improved air brakes are used, such as we had on this engine. After the horse jumped down on the track, he ran for some distance, until finally struck by the engine. At the time he was struck the speed had been reduced to something under five miles an hour, and would have been stopped before the second car passed by him. The train never came to a standstill, because I was signaled to go ahead by conductor. If it had been a member of my family, or my wife, on the track, as this horse was, and under the same circumstances, I couldn't have stopped the train. I can't state the exact distance the train run after the horse jumped on the track. A train like the one I had could, in my judgment, be stopped in 150 or 175 yards. We only had two passenger coaches, but a train of six coaches, with good air brakes, can be stopped in as short a space as one withtwo coaches. The local passenger train has been stopped a number of times within the distance testified about by plaintiff's witnesses, because it was not running as fast, and for the further reason we are always watching for signals, and approach the stations slower." The curve tended to "impede my sight from crossing to where horse was killed. There was a slight upgrade from crossing. There was a dip in the road, and from the crossing to where the horse was killed was slightly upgrade." The testimony of the conductor merely went to corroborate the statement given by the engineer as to the circumstances under which the horse was killed. The further fact was brought out that the fireman on that train at that time...