88 Ga. 261 | Ga. | 1892
Judgment affirmed.
Wright sued the railroad company for the killing of three head of cattle, alleging that its servants failed to give any signal or warning by blowing the whistle or otherwise, and were running at an excessive and unlawful speed, which negligence caused them to kill the stock. The testimony for the plaintiff was, in brief, as follows :
For the defendant the testimony of the engineer, fireman and section-master tended to show the following : The cattle were killed by a passenger-train' running at schedule speed, between 20 and 25 miles an hour, nearly seven miles from Savannah, about 200 yards after passing the road-crossing, and about 500 or 600 yards beyond the whistling-post which the train had passed. The engineer was sitting on his box looking ahead on the track. He blew the whistle (two long and two short blows) at the whistling-post for the road-crossing; then he saw two cows on the track about one hundred yards ahead of the engine, and beyond the road-crossing, and blew at them; they got off the track, and then within 20 or 25 yards ahead of engine three cattle jumped on the track in front of it, too close to stop before running over them. The engineer applied the air-brakes to stop, blew the whistle, and did everything in his power to prevent the collision. It would have been impossible to have prevented it. The locomotive was in perfect order. The engineer did not see the cattle before they got on the track, which is straight at that place. The atmosphere was smoky on account of the woods being on fire near there; and section-hands were working between the engine and the stock. He did not decrease speed at the blow-post; it was not customary to do that. He did not reverse the engine when the cattle got on the track 20 or 25 yards ahead of it; did not have time to do so ; he was blowing the whistle and applying air-brakes at the same time. The fireman was attending
The jury found for the defendant. The plaintiff moved for a new trial on the grounds that the verdict was contrary to law and evidence, for newly discovered evidence, and because of various alleged errors in the court’s charge not material to be here reported. The newly discovered evidence is contained in an affidavit of one Winkler, as follows: On the day the cattle were killed, deponent was a passenger on defendant’s train, known at that time as the one o’clock train. He noticed the circumstances under which this train collided with certain cattle which he afterwards learned to be plaintiff’s, near the private station of plaintiff and between the road in that locality used by the public generally (which deponent understood to be a public road) and the blow-post of defendant, the cattle being struck pn the Savannah side of this road and at a point much nearer to the blow-post than to said road. At the time they were struck and immediately before, the train was going at its usual full speed; the brakes were not applied, and no effort was made to apply the brakes or to reduce the speed. A short while before reaching these cattle this same train had run into other cattle and over one of them, grinding it up under the train ; at this time brakes were applied and the train slowed down, but it had ■ resumed full speed before plaintiff’s cattle were reached. Deponent was certain of this, and ob
In rebuttal'the defendant introduced affidavits of the engineer and the section-master. The engineer deposed that on the day when plaintiff’s cows were killed no other cow was struck by the train; that just before the train reached the road-crossing beyond which plaintiff’s cows were killed, there were two cows upon the track, but they ran off upon the whistle being blown and neither of them was touched by the train; that deponent had no distinct recollection of any such conversation as alleged by Winkler, but if he ever had the conversation with Winkler, is positive that he did not and could not have told him that no brakes were applied at the time of the killing of plaintiff’s cows, because such was not the fact, nor did he tell Winkler that he was prevented from seeing the cows go upon the track because the section-master and his hands were thereon, because as a matter of fact deponent did see the cows when they came upon' the track. The section-master deposed that his section comprised the