106 Ga. 786 | Ga. | 1899
Hall sued tlie’Louisville & Wadley Railroad Company for damages, alleging, in substance, that he was the owner ■of four mules which, without the fault of petitioner, strayed upon the track and grounds occupied by the defendant’s line of railway, near its terminus at Louisville; that the defendant by its agents and servants so carelessly and negligently operated its train of cars that the same ran over and killed petitioner’s mules, to his damage. It is further alleged that the mules killed were a part of a car-load of mules transported by defendant from Wadley to Louisville, reaching there about sunset on the day the mules were killed, but that, in consequence of the fact that the defendant had its turntable at Louisville torn up for repairs, and that it had none of the means and appliances by which stock could be quickly and safely unloaded .at this place, it was after night and very dark before the mules could be unloaded. The four mules above mentioned escaped and ran down the track of the defendant, which fact was known to the agents and servants of the defendant. As soon as the last of the mules were unloaded, the servants and agents in charge of the train started to run the train back to Wadley, and the train was negligently and without due care and caution run at a rapid rate of speed toward Wadley," when it was known to the employees in charge of the train that the mules were on the track. The servants and agents of the defendant failed to keep a Avatchout for the mules, and were negligent in not running slowly until the mules could be taken from the track, by reason of which negligence three of petitioner’s mules were killed outright and the fourth so wounded and damaged that it was rendered Avorthless.
The defendant answered denying the allegations of negligence •charged against it. At the trial the evidence for the plaintiff tended to establish the allegations in the petition in reference to the time at which the stock were unloaded and the cause of the delay. There was also testimony in his behalf as to the value of the mules. There was further testimony that when the mules escaped from the car from which they were being unloaded, the
- The jury returned a verdict for the plaintiff for $400 and costs of suit. The defendant’s motion for a new trial havinglieén overruled, it excepted. The original motion contained the general grounds. The first ground of the amended motion
Tho second ground of the amended motion was as follows: "The court erred in not giving the jury instruction to tho effect that- the negligence complained of on the part of the plaintiff would have to operate as the cause of the damage sustained by him, and only such negligence as was the natural and proximate cause of the damage could be invoked against the defendant.” We think it was error in the court to fail to charge tho principle referred to in this ground. This was an action brought for the negligent killing of stock. Even if the defendant was negligent in failing to- provide a stock-pen and other proper facilities for unloading stock, this had little bearing upon the real question at issue. It was proper to allege and prove the circumstances which brought about the escape
Judgment reversed.