33 Ga. App. 293 | Ga. Ct. App. | 1924
The exceptions pendente lite, not being argued or in any way insisted upon, will be treated as abandoned.
“In the absence of positive evidence of negligence, or, where the only express evidence of negligence on behalf of the plaintiff is a mere expression of opinion, the presumption of negligence arising against a railroad company from proof of the killing of an animal is met and overcome by evidence for the defendant company showing that the animal could not have been seen soon enough to avoid the casualty, and that after it was discovered all diligence was used to prevent the killing. But where the evidence for the plaintiff shows negligence as a matter of fact and is in material conflict with the evidence introduced by the defendant for the purpose of rebutting the presumption of negligence, an issue of fact is raised which must be determined by the jury.” Western & Atlantic R. Co. v. Clark, 2 Ga. App. 346 (1, 2) (58 S. E. 510). The physical facts and circumstances alone in the case may afford proof of the defendant’s negligence, and may be such as to raise an issue of credibility for determination by the jury, notwithstanding the defendant’s witnesses, to rebut the presumption of negligence, may have
Where the court correctly charged the jury that the plaintiff, if entitled to recover, “would be entitled to recover the market value of the bull at the time and place it was killed,” that this was “the rule of measuring the damage,” and that they should “look to the evidence” to ascertain the same, it was not error to fail to charge “in what way or by what method they should ascertain the true market value,” in the absence of a timely written request for a further elaboration of the rule of damage stated, or for a definition of the term “market value.” Seaboard Air-Line Ry. Co. v. Bishop, 132 Ga. 37 (2), 39 (63 S. E. 785); High Shoals Mfg. Co. v. Price, 136 Ga. 23 (70 S. E. 641); Crown Cotton Mills v. McNally, 123 Ga. 35 (6) (51 S. E. 13); Cen. of Ga. Ry. Co. v. DeLoach, 18 Ga. App. 362 (6) (89 S. E. 433).
Where the court correctly charged the rule as to the statutory presumption of negligence, “unless the company shall make it appear that their agents have exercised all ordinary and reasonable care and diligence,” and further that “the main and first issue is whether or not at the time of the killing the agents of the company were exercising all ordinary and reasonable care and diligence to avoid the killing, or if the agents of the defendant company by the exercise of ordinary and reasonable care and diligence could have avoided the killing,” the first-quoted excerpt was not subject to exception as failing to elaborate “in what manner and by what means and by proof of the exercise of what degree of care and diligence defendant could overcome and rebut the presumption of law against it,” or as failing to tell the jury specifically that such presumption could be rebutted and overcome “by proof on behalf of the defendant that its employees in charge of its train exercised all ordinary and reasonable care and diligence in keeping a lookout ahead of the train and in attempting to avoid striking the bull after it became visible to them as the train approached the place
It was inaccurate to charge the jury as follows: “The defendant contends that its agents in charge of the locomotive that killed this cow—after the danger had become imminent, it was impossible for the agents to have done anything to have avoided the killing. If the defendant has shown that to your satisfaction by a preponderance of the testimony, that would entitle the defendant to a verdict at your hands.”- East Tenn. Ry. Co. v. Daniel, 91 Ga. 768 (2) (18 S. E. 22); Ga. So. & Fla. Ry. Co. v. Jones, 121 Ga. 822 (49 S. E. 729). Even though immediately following tlie excerpt quoted, the court said, “ On the other hand, if you find that the'agents of the defendant in charge of the locomotive did not exercise all ordinary and reasonable care and diligence at the time of the killing to avoid the accident, that would entitle the plaintiff to a verdict at your hands,” this language did not withdraw or expressly modify the previous expression, and the giving of two different rules in close connection might have tended to mislead the jury as to which rule should be applied, and might have resulted in their application of the first erroneous rule, requiring of the defendant a greater measure of diligence than the law requires. Whether we would grant a new trial on this ground alone it is unnecessary to determine.
Judgment reversed.