30 S.E.2d 446 | Ga. Ct. App. | 1944
Lead Opinion
The evidence demanded a finding in favor of the defendants, and the court did not err in directing the verdict.
The plaintiff by showing that the mule was killed by the operation of the train successfully invoked the prima facie presumption of want of reasonable skill and care afforded by the Code, § 94-1108. But the inference created by proof of injury by the running of the defendant's train came to an end when the defendants produced some evidence to the contrary, and the burden then fell on the plaintiff to make out a case without any aid from the statute. Parrish v. Southwestern R. Co.,
Judgment affirmed. Sutton, P. J., concurs.
Dissenting Opinion
There was a directed verdict in this case and no question arises as to the propriety of charging the Code, § 94-1108; but whether the principle is applicable is material in the case. In my judgment the prima facie presumption of negligence does not vanish as a matter of law until the railroad has produced *204
all the evidence in its power to produce which will authorize a finding that it exercised ordinary care and diligence, or at least enough evidence to authorize such a finding. In this case the railroad had the burden of producing evidence showing ordinary care. The evidence produced, if taken at face value, did not necessarily show it. The testimony for the railroad did not show whether the fireman went over and told the engineer about the mule immediately, or whether he waited a half minute, more or less. I cannot agree with the statement in the majority opinion that "the fireman's testimony must be taken to indicate that he reported to the engineer the presence of the muleimmediately upon his discovery of it, in the absence of anything to the contrary." There is no evidence to authorize such a holding. All the fireman said about this was that he could see the mule just a little quicker than the engineer, and that about the time he told the engineer about the mule the engineer saw it. Even if the presumption had vanished it was for the jury to say whether under the evidence the railroad exercised ordinary care in view of the fireman's bad judgment on the question of distances. If he misjudged the length of a box car by approximately three-fourths of its length, he might have misjudged the distance the train was from the mule when he first saw it. It seems that our present presumption statute was copied from Mississippi's. In the case of Gulf, M. N. R. Co. v.
Brown,