15 Ga. App. 707 | Ga. Ct. App. | 1915
S. A. Chastain sued the Atlantic Coast Line Bail-road Company in a justice’s court for the value of a cow killed by the running of one of its trains. The jury found a verdict in, his favor, which, upon certiorari, was sustained by the judge of the superior court; and the defendant excepted to the judgment overruling the certiorari. The only question involved is whether, under the facts and the law applicable thereto, the recovery was authorized. It is insisted by the plaintiff in error that the presumption of negligence raised by the killing was fully rebutted by the evidence of its engineer, who testified, that he was the engineer operating the train that killed the cow; that at the time the cow was struck it was about dark,—a little after six o’clock on November 6, 1912; that he was running his engine on the regular passenger-train from Albany to Thomasville; that the engine was equipped with the best headlight in regular use on passenger-trains, and that by its light he could have seen from 15 to 20 feet beyond the sides of the track; that as he was approaching this place his fireman was firing the engine and was. not looking out; that he (the engineer) was sitting on the engineer’s seat and was looking out, but did not see the cow until the engine was from within 50 or 60 yards of her, and it was so close that, in his judgment, it was impossible for him to do anything toward stopping the train before he got to where the cow was; that he made no effort to stop the train, because he thought it was impossible to do so; nor did he blow his whistle, or cut off his steam, or make any attempt to keep from hitting the cow, because, when he saw the cow, he thought it useless to make an effort to keep from hitting it; that when he saw the cow she was not where’the engine could have struck her, but that after reaching the end of his run—Thomasville—he discovered cow-hair on one of the projecting parts of the engine, and the next morning, as he was going up on his run, he saw the cow lying on the track, and was satisfied that the projecting part of his engine had killed her. S. A. Chastain, owner of the cow, testified that the defendant’s track was straight for several hundred yards from the point where the cow was killed, back toward Albany;
The facts in the instant- case are different from those in any of the eases cited by the learned counsel for plaintiff in error. In the case of Macon & Augusta R. Co. v. Vaughn, 48 Ga. 465, it appeared affirmatively from the evidence, without contradiction, that there was no negligence or want of care on the part of the railroad company. There a mule was killed by the railroad company, and the Supreme Court said: “The evidence of the absence of any negligence in running the train, at the moment of the killing of this mule, is very strong, and is wholly uncontradicted. . . It was night, and the engineer testifies positively to the use of the greatest care. A railroad company is not liable for an unavoidable accident, even under our statute in relation to stock. If, with every reasonable precaution, proper lookout, proper speed and proper attention, an unavoidable damage ensues, a company which has by law a right, under such precautions, to run its trains, is not responsible.” In Georgia Southern & Florida R. Co. v. Sanders, 111 Ga. 128 (36 S. E. 458), the cow came suddenly upon the track, in front of the engine, and the engineer pul on his bralces, and otherwise used all ordinary care and reasonable diligence to stop the train. In Macon, Dublin & Savannah R. Co. v. Hamilton, 9 Ga. App. 254 (70 S. E. 1126), a cow grazing near the railroad-track suddenly ran on the track, a few feet in front of the engine, which was running at a speed of from 25 to 30 miles an hour, and was killed. The undisputed evidence of the engineer and the fireman in that case fully rebutted the statutory presumption of negligence. In Macon & Birmingham R. Co. v. Revis, 119 Ga. 332 (46 S. E. 418), the train was running 35 or 40 miles an hour, and the engineer first saw the horse about 25 or 30 feet from the track. The horse suddenly walked to the edge of a cut and jumped down upon
Of all the cases in the reports which we have been able to find, we think that of Western & Atlantic R. Co. v. Smith, 15 Ga. App. 289 (82 S. E. 906), is most nearly “on all fours” with the instant' case. In that case the fireman of the defendant testified that he first saw the cow when it was twenty-five or thirty feel distant from the train, coming from behind some cars which were standing on the third or fourth track from that on which the train was running, and that he did not have time, from the moment he saw the cow until she was hit, to tell the engineer to stop, or to apply brakes, and that in fact no brakes were applied, no bell was rung, no whistle blown, and no effort was made to stop the train, because he did not thinlc it necessary, and nothing was done to prevent the accident. The engineer in that case testified that he was sitting on his engineer’s box on the right of the engine, and that he did not see the cow at all, and could not see it from where he was. The fireman also swore that the cow came from the left of the train, and that the train could not have been stopped in time to prevent the killing of the cow; and yet in that .case this court held that, under the facts, “it was for the jury to determine whether or not the explanation offered in behalf of the defendant completely rebutted the presumption of negligence created by the killing of the cow; and they might legitimately have concluded that the explanation was insufficient; the credibility of the witnesses, as well as the question of negligence being exclusively for them.” In Central of Ga. Ry. Co. v. Harden, 113 Ga. 456 (38 S. E. 950),— another “cow” case, the Supreme Court said: “It is a settled doctrine of this court that where a jury has passed upon a case, and there was evidence to support their finding, and that finding has been approved by the trial judge, in the absence of 'any error of law on the part of the trial judge, this court will not set aside the
We think, under the facts in this case, that it was a question for the jury whether the testimony for the defendant completely rebutted the presumption of negligence created by the killing of the cow; and the judgment overruling the certiorari is sustained.
Judgment affirmed.