120 Ga. 593 | Ga. | 1904
There was no direct evidence showing negligence on
the part of the defendant. The evidence was of such a character as to authorize the jury to find that the plaintiff was free from fault, and therefore he has the benefit of the presumption of negligence which the law gives under such circumstances. This presumption casts upon the defendant the burden of showing either that it was not negligent in any of the respects alleged in the petition, or, if it was, that such negligence was not a contributing cause bringing about the injury complained of. Central Ry. Co. v. Weathers, 120 Ga. 457, and cit. Treating the case as one in which it is established that the plaintiff was free from fault, a recovery by him should not be disturbed unless the evidence is of such a character as to demand a .finding that the presumption of negligence has been overcome. If the evidence is of this charac
Did ordinary prudence require a more thorough inspection of the engine at Montgomery than is indicated by the testimony of the engineer ? There is evidence that it is not unusual for nuts upon the bolts of an engine to work off as a result of the vibration of the engine, in places where the vibration affects them. Several witnesses, men who had been engaged in the railroad service for ^ears, testified that it was a most unusual occurrence for the nuts on bolts holding the apron in place to work off; one, witness testifying that he-had never known of an instance; another that he had known of only one instance in a number' of .years; and still another that he had known of only two instances in a period of many years service. . There was one witness, however, whose experience was different and who testified that it was not unusual for these nuts to work off. There was evidence that persons skilled in the inspection and examination of engines could, by looking around at different parts of the engine, as was done by^ the engineer in this case, detect nuts which are loose or liable to come off; that while this could be done and such an- inspection could be reasonably relied on, still, to be perfectly safe in reference to such matters, it was necessary to test the bolts and nuts with a hammer. Did ordinary prudence require that the hammer test should be applied in Montgomery ? The engine had been thoroughly inspected at Columbus two days before. The run from Columbus had not been such as to indicate that the engine was not in good condition. • To the eye of the experienced engineer, who in this way examined every part of the engine, nothing appeared to put him on notice that there was any change in the condition of the engine since he received it from the shops in Columbus and* had by his own inspection found it free from defects. We think that the evidence demanded a finding that the engineer at Montgomery did all that ordinary prudence required. To have required more at his hands as the representative of the company would have required extraordinary . care to be exercised. The truth of the case is that the occurrence is one of a character that often happens, where, notwithstanding all the diligence required under the particular conditions has been