31 Ga. App. 278 | Ga. Ct. App. | 1923
“When it is shown by a plaintiff in an action against a railroad company to recover damages for killing a cow that the animal was killed by the running and operation of a train of cars, the law raises a presumption of negligence against the company, and, without 'more, the plaintiff is entitled to recover the value of the animal killed. Such presumption, however, may be rebutted; and when the evidence of the engineer . . on the locomotive which struck the animal is to the effect that she came upon the track suddenly and immediately in front of the locomotive, and that all reasonable and ordinary diligence was used to prevent striking the animal, but without avail, such presumption is successfully rebutted.” Ga. So. & Fla. Ry. Co. v. Sanders, 111 Ga. 128, 129 (36 S. E. 458); Ga. R. Co. v. Wall, 80 Ga. 202, 204 (7 S. E. 639) ; Whiddon v. Atlantic Coast Line R. Co., 21 Ga. App. 377 (2) (94 S. E. 617); AtlantiC Coast Line R. Co. v. Whitaker, 10 Ga. App. 207 (73 S. E. 34); Atlantic Coast Line R. Co. v. Cox, 11 Ga. App. 384 (75 S. E. 268). In the instant case the effect of the plaintiff’s evidence was merely to show the killing of the cow by the defendant’s train; and while he testified that the track was straight, so that the animal might have been seen for a distance of 150 yards from where she was hit, he did not see the injury. He testified that the cow came on to the track from a path which “went on to the track in a cut;” that it was “about 12 or 15 feet from the rail to the edge of the cut;” that “you couldn’t see the cow while she was in the path until she came out into the cut;” that “the tracks of the cow indicated that she went along the path straight to the track and was hit as soon as she got to the track;” and that “she did not run along the track at all.” The engineer of the locomotive which struck the animal testified that he “first saw the cow when she came out of a sort of gully on to the track,” when he was only 25 or 30 yards from her; “that as soon as he saw her he put on the brakes and blew the cattle alarm, but “it was physically impossible to stop the train without striking her; ” that he was keeping a lookout, and that there was nothing else which he could have done to stop the train. This evidence was not disputed. The statutory presumption being completely rebutted by the testimony for the defendant and the physical facts shown by both the plaintiff and the defendant, the finding and judgment for the plaintiff must be set aside.
(a) One of the witnesses for the railroad company, whom the briefs term its “section foreman,” but whose connection with the defendant the record does not in any way disclose, testified that he went to the place
Judgment reversed.
