22 Ga. App. 332 | Ga. Ct. App. | 1918
Lead Opinion
(After stating the foregoing facts.) Where stock is killed by the running of the cars of a railroad company,- and there is some evidence other than the presumption' against the company, authorizing the jury to find that the employees in charge of the train were negligent and that the killing was the result of that negligence, a verdict against the railroad company should not be disturbed. Negligence, like any other fact, may be " established by circumstantial evidence as well as by direct evidence. In Southern Railway Co. V. Carter, 139 Ga. 237 (77 S. E. 21), Mr. Justice Beck said: “In passing upon the question as to whether or not the presumption of negligence- which arose upon proof of the killing of the stock in the operation of the defendant’s train had been overcome, the jury had the right to consider all
In the instant ease the plaintiff’s right to recover did not rest solely upon the statutory presumption of negligence, but there was direct evidence as well as circumstantial, as shown by the record,
Judgment affirmed.
Dissenting Opinion
dissenting. ¡ In my opinion the evidence for the plaintiff, beyond showing that his mule was injured by the running of a train of the defendant (and thus raising the statutory presumption of negligence against the defendánt), was without any probative value whatever. The undisputed evidence of the engineer, and the other employees of the defendant, upon the train which struck the mule, completely rebutted this presumption of negligence, and the'recovery for the plaintiff ’ was unauthorized. I think the court erred in overruling the motion for a new trial. Georgia Railroad & Banking Co. v. Wall, 80 Ga. 202 (7 S. E. 639); Atlanta & Charlotte Air-Line Ry. Co. v. Gravitt, 93 Ga. 369 (7) (20 S. E. 550, 36 L. R. A. 553, 44 Am. St. R. 145); Georgia Southern & Florida Railroad Co. v. Sanders, 111 Ga. 128 (36 S. E. 458); Macon & Birmingham Railroad Co. v. Revis, 119 Ga. 332 (46 S. E. 418); Atlantic Coast Line Railroad Co. v. Whitaker, 10 Ga. App. 207 (73 S. E. 34); Atlantic Coast Line Railroad Co. v. Cox, 11 Ga. App. 384 (75 S. E. 268); Whiddon v. Atlantic Coast Line R. Co., 31 Ga. App. 377 (94 S. E. 617).