125 Ga. 85 | Ga. | 1906
This was an action on the case for damages alleged to have been sustained by reason of the killing of a certain mare and a colt, the property of the plaintiff, by the negligence and carelessness of the servants of the defendant (a railroad company) in the running of its locomotives, cars, and other machinery. The plaintiff proved the killing, value, and ownership of the animals mentioned, and rested upon the statutory presumption of negligence. The defendant assumed the burden and attempted to prove that its agents and servants had “exercised all ordinary and reasonable care and diligence,” and therefore that the injury did not result from the negligence of the defendant. The engineer in charge of the train testified, among other things: “I couldn’t stop. It was night, about one o’clock. The train was a through freight, running about 25 miles an hour. I had air-brakes on the engine and throughout the train. I don’t know of any better method of stopping a train quickly than air-brakes. We had a headlight that night, and it was burning at the time I hit the stock. At that time I was on my box, in position on the engine where I belonged, on
From the ‘evidence quoted it will be seen that the' engineer, who alone saw the stock, says: “When I first’saw them I applied my brakes and reversed my engine.” The effort to stop the engine is the gist of the defense upon which the defendant relies to defeat the plaintiffs recovery. Upon that point the plaintiff as a witness in his own behalf swears to a statement which the engineer made, to the effect that he “didn’t have time to apply anything.” In reply to this testimony the engineer again testified: “I never had any such conversation as Mr. Andrews reports, that I didn’t try to stop and didn’t attempt to stop.” Thus an issue was presented between the witnesses. Counsel for defendant insists that the statement of the plaintiff was not a contradiction of the engineer’s testimony, and if it amounted to a contradiction, the same was not entitled to consideration, except for purposes of impeachment, citing, upon the latter point, Watts v. Starr, 86 Ga. 392, Central R. Co. v. Maltsby, 90 Ga. 630, Green v. State, 95 Ga. 463, and Jones v. Harrell, 110 Ga. 373. The testimony of the plaintiff is directly contradictory to the testimony of the engineer to the effect that he did apply the brakes. As to the effect of the evidence being entitled to no consideration, except for impeachment, the point is well taken; but admitting that it could have no other effect, it was in the province of the jury to say whether or not the witness was successfully impeached. The matter testified about was material to the issue on trial; and if the jury found that the witness was successfully impeached, they could then disregard his entire testimony. Code, §5295; Mitchell v. State, 110 Ga. 272(2). The ver