Western and Atlantic R.R. v. King

• Decision Date: 10 April 1883
• Citation: 70 Ga. 261
• Parties: WESTERN AND ATLANTIC RAILROAD v. KING.
• Court: Georgia Supreme Court

70 Ga. 261

WESTERN AND ATLANTIC RAILROAD v. KING.

Supreme Court of Georgia.

April 10, 1883

February Term, 1883.

1. A railroad company is liable for any damage done to persons stock or other property by the running of its trains, unless the company shall make it appear that their agents exercised all ordinary and reasonable care and diligence to prevent such damage; but where, in an action for killing a horse, the court, after charging this principle, added, " that is might say, a full measure of care and diligence-all that could be expected," such charge was error; the effect of it being to require extraordinary diligence of the company.

2. Negligence is a question for the jury alone; and for the judge to instruct them that if the law provides that the trains shall run a certain speed, and they were running above that speed, it was negligence, was error.

Railroads. Damages. Negligence. Diligence. Before Judge FAIN. Gordon Superior Court. August Term, 1882.

Mrs King brought suit for damages against the Western and Atlantic Railroad for killing a horse and destroying a buggy. The case originated in a justice's court, but was carried to the superior court by appeal. On the trial, the plaintiff contended that the train of the defendant had run against the horse and buggy at a road crossing, killing the horse and demolishing the buggy. The defendant contended that the horse had become frightened and ran away, and that the train happening to be passing the road crossing at the time, the horse ran into it without fault on the part of the defendant. There was conflicting evidence as to speed of the train etc., not necessary to set out in detail. The jury found for the plaintiff. Defendant moved for a new trial on various grounds, the only material ones being set out in the decision. The court overruled the motion, and defendant excepted.

A. N. STARR; R. J. MCCAMY, for plaintiff in error.

W. R. RANKIN; E. J. KIKER, for defendant.

CRAWFORD Justice.

The refusal of the court below to grant a new trial, upon the grounds set out in the motion therefor, brings the case to this court.

1. The first ground of the motion is, that the judge erred in charging the jury as follows: " If you find from the testimony, that the cars or machinery of the company caused this injury, the burden is then changed, and it is upon the company to show that their agents or employés in charge of the train, exercised all reasonable, and ordinary care and diligence, that is,...