Macon & Western R.R. Co. v. Lester

• Decision Date: 30 June 1860
• Court: Georgia Supreme Court
• Parties: MACON & WESTERN RAILROAD COMPANY. v. LESTER.

30 Ga. 911

MACON & WESTERN RAILROAD COMPANY. v. LESTER.

Supreme Court of the State of Georgia

JUNE TERM, 1860.

Case, from Bibb county. Tried before Judge Lamar, November Term, 1859.

Rodolphus Lester brought an action on the case to recover of the plaintiff in error damages for a horse alleged to have been run over and killed by the cars of said company, on the Macon & Western Railroad.

On the trial, plaintiff, Lester, introduced William H. Berry, who testified: That he was standing and looking at the train on the 19th day of December, 1855, between 8 and 9 o'clock; was in a house some fifty or sixty feet from the road; was looking at the light in front of the engine; saw the light half a mile distant; the cars were coming towards witness on a down grade; there was nothing to obstruct the view; saw a beast on the road; saw it run some fifty yards after first seeing it, when it passed out of witness' sight; saw it after it was killed; it was left on the crossing; no effort to stop the train until it struck the crossing; it ran some four or five hundred yards before it stopped after passing the crossing. The horse was struck some forty or fifty feet above the crossing, and was carried some fifty yards by the cars; the train was running about twenty miles per hour; the horse was loose, without anything on him; did not leave the track until he was knocked down; witness does not know how far the train was from him when he first saw the horse; saw the horse by the light of the lamp in front of the engine; not more than a minute or a minute and a half from the time he saw the horse until he disappeared; the crossing was not a public crossing, but was built by Mr. Van Valkenburg, by the consent of the railroad company. Most of the neighbors west of the railroad used it as a crossing; the animal referred to was a small, dark bay mare; the whistle was not blown till after the mare was struck and the train had reached the crossing.

William H. Cason testified for plaintiff: That he saw the animal next morning after it was killed; it was the property of Rodolphus Lester; knew her well, and was worth $200.00; witness had put it in witness' lot; the fence was a good one, but the mare broke out; it was a bright, moonlight night, the moon near its full; the mare went on the railroad at the crossing, and then up it 440 yards; it then turned and walked back some distance, then trotted, and then ran; ran some 200 yards before it was struck; it ran so fast as to leap three or four cross-ties at a time; it was struck thirty yards above the crossing; the crossing was used as a public one; Van Valkenburgh's steam mill is near it, and Ralston's mill is reached by it; it is some three miles from Macon, and much used by the public; witness not present at the accident; saw it the morning after; the railroad where the accident happened is straight some eight or nine hundred yards; there was no obstruction; the road was on an embankment from four to twelve feet high and down grade.

Warren Riley testified: That he examined the road with Csson—and the balance of his testimony is in substance the same as Mr: Cason's as to the description of the road, the movements of the horse, etc.

William Berry, recalled, testified: That he was a fireman on the railroad; a car going on an up grade can not be stopped under from 50 to 200 yards; on a down grade, not under from 100 to 300 yards; running down grade, it could not have been, if all the appliances were used, in fifty yards; from the tracks the mare made, she was not running at full speed; such a horse as this would run a mile in three minutes when at full speed.

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