| Ga. | Dec 1, 1885
This was an action brought by plaintiffs against defendants to recover damages f >r the killing of a bull, the property of plaintiffs, upon the road and track of the Central Railroad, by the careless and negligent running of an engine and cars of the Georgia Railroad on said track. The plaintiffs were sworn, and testified to the killing of the bull near the track of the Central Railroad, and it was shown that this was done by a train of cars belonging to the Georgia Railroad, and that the servants of the company had used all ordinary and reasonable care and diligence to prevent the inj ury. The court required ihe plaintiffs to elect which road they would proceed against, to which plaintiffs objected, which was overruled by the court, and they elected to proceed against the Georgia Railroad, and the court discontinued the case as to the Central Railroad, to which plaintiffs objected.
After the argument had commenced, when the testimony had closed, the plaintiffs offered to recall Davis, one of the plaintiffs, who had testified in the case, to prove that a train heavily laden, running at a high rate of speed, had been waved down near where this injury had occurred, and had stopped its train within two hundred and fifty yards, the counsel of plaintiffs stating that they did not know of this fact until then, but the
1. It may be that, under the facts of this case, the defendants may be joined in the same action, and that the court may have committed error in requiring the plaintiffs to elect which one of the defendants they would proceed against; but we do not rule that any such error was committed in this case, as we are satisfied that the plaintiffs were in no manner hurt by the direction which the court gave the case. If the Georgia Railroad, which was permitted by the Central Railroad to use its track, and which did the damage of which the plaintiffs complain, was not liable, then the Central is not liable ; and as it appears from plaintiffs’ declaration that the Georgia Road did the .damage, the liability of the Central depended upon that of the Georgia Road, and the jury having found that the Georgia Road was not liable, it is clear that the Central Roadis not liable; hence, there was no hurt in discontinuing the case as to the Central Road. While an action might be mentioned against both railroads, a cautious pleader would very likely bring separate actions against these defendants under similar circumstances.
2. The next ground of error is that the court erred in refusing to allow the case to be opened, so as to permit Davis to testify as stated. This was a matter resting in the discretion of the presiding judge, who was charged with the conduct of the trial of the case. Davis was negligent in not communicating to his counsel what he knew, so that they might have examined him fully when he was onthe stand as a witness, and the court might have refused his
3. It is further contended that, as the defendant only introduced the engineer as a witness to prove diligence on the part of the railroad company, and did not introduce the fireman, the court should have granted a new trial for this reason. It appeared that the defendant accounted for the fireman and produced him in court, when he might have been examined as a witness by plaintiffs. If the fireman had not been accounted for by the defendant, then the jury, on the trial of the case, might have inferred that he had been kept away because he knew something which might have been damaging to defendants; but they might have believed the engineer; the absence of the fireman was a circumstance only which might have authorized an inference against the road, but did not compel the jury to so infer; they had the right, if they chose, to believe the engineer. But under the circumstances of this case, the fireman being present and open to plaintiffs, no inference could be drawn against defendant, because he was not sworn. There is no error disclosed by this record.
Judgment affirmed.