| Ga. | Jan 30, 1888
Wall brought an action against the railroad company for killing one mule and injuring two others by the running of a train. The case was fully made out, to the extent of casting upon the railway company the burden of explanation. The explanation which it attempted to make was by employés who were upon the train at the time; and from their evidence it appeared that the casualty took place early in the morning before daylight, and that there-was' a fog jn’evailing at the time which prevented the mules from being seen at a distance within which it was possible to stop the train. If their evidence be true, it was a physical impossibility to protect the lives of these mules after they could have been seen; and their evidence is not contradicted by any witness, nor, so far as we can perceive, by the circumstances of the case.
The law, by raising a presumption of negligence and requiring the company to rebut that presumption by showing that all ordinary and reasonable diligence was observed, means to accept such explanation as, according to the manner of conducting business, it is possible to make. It is generally out of the power of the company to show this diligence except by its employés. The law, therefore, certainly means to receive their evidence as the evidence of other witnesses is received, subject to be weighed, and if there be anything against it, discredited, but to be credited and respected if there be nothing against it. There is no other way to carry out the scheme of the law, which is, to require the railroad company to show the observance of all ordinary and reasonable diligence. To arbitrarily reject the explanation because it comes from employés is to cut off the company from defence altogether; it is to stand on the presumption and treat it as impossible to make defence. That is not the scheme of the law. In this case the defence was complete, and we think the jury found contrary to evidence and contrary to law. There is no law
Judgment reversed.