Southern Ry. Co v. Carter

• Decision Date: 15 January 1913
• Citation: 77 S.E. 21,139 Ga. 236
• Parties: SOUTHERN RY. CO. v. CARTER et al.
• Court: Georgia Supreme Court

77 S.E. 21

139 Ga. 236

SOUTHERN RY. CO.

v.CARTER et al.

Supreme Court of Georgia.

Jan. 15, 1913.

(Syllabus by the Court.)

1. Railroads (§ 441^*)—Killing Animals-Presumption of Negligence—Evidence. The undisputed evidence in the case showed that the plaintiffs' mules were killed by the

running of a locomotive and cars of the defendant railroad company. The presumption of negligence thus raised was not so clearly rebutted as to authorize this court to say that the finding of the jury against the railroad company upon its contention that its employes had not been negligent, but had exercised due care and diligence, was without evidence to support it.

[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1575-1595; Dec. Dig. § 441.^2-*]

2. Parties (§ 4*)—Nominal and Use Plaintiffs—Right to Sue—Ownership of Subject-Matter.

Where suit was brought by A., B., and C. to recover damages for the alleged negligent killing of certain mules, and the plaintiffs amended their declaration by striking the name of A. as a coplaintiff, and "having the suit to proceed in the name of B. and C. for the use of themselves and A., " no objection being made to the amendment, and there was a finding generally for the plaintiffs, such a verdict will not be set aside, as being contrary to the evidence, merely because the evidence shows that A. had purchased the mules from B. and C, and in the notes given for the purchase money title was retained in the vendors, and that the purchase money had been only partially paid at the time of the institution of the suit.

[Ed. Note.—For other cases, see Parties, Cent. Dig.§ 4; Dec. Dig. § 4.*]

Error from Superior Court, Habersham County; J. B. Jones, Judge.

Action by J. and J. S. Carter and others against the Southern Railway Company. Judgment for plaintiffs, and defendant brings error. Affirmed.

Harold W. Ketron, of Clarkesville, and A. G. & Julian McCurry, of Hartwell, for plaintiff in error.

H. H. Dean, of Gainesville, for defendants in error.

BECK, J. W. J. Dean and J. & J. S. Carter brought suit against the Southern Railway Company to recover damages for the killing of certain mules by the operation of a train of the defendant company, it being alleged that the employes of the defendant, in consequence of their negligent operation of the train without blowing the whistle, or giving any alarm, or slacking the speed of the train, ran over and killed the mules, when they might, by the exercise of due care, have avoided doing so. The defendant filed a plea and answer denying the material allegations in the petition. The plaintiffs filed an amendment to the petition striking the name of W. J. Dean as a coplaintiff, and stating that they "proceed in the name of J. & J. S. Carter for the use of themselves and W. J. Dean." There was no objection to this amendment The only question raised in the motion for new trial is as to the sufficiency of the evidence to support the verdict, which was in favor of the plaintiffs; it being contended, in the first place, that there was no evidence of negligence or lack of due care upon the...