Roberson v. Southern Railway Co.

30 Ga. App. 226 | Ga. Ct. App. | 1923

Jenkins, P. J.

(After stating the foregoing facts.) It is difficult to conceive how the bulging of the sides of the car. could possibly have had any sort of tendency to accelerate the movement of the cinders down through the hopper. ’ It would rather seem that the natural effect would be to momentarily retard such a movement. Be this as it may, however, it was incumbent upon the plaintiff to prove the particular act of negligence alleged (Louisville & Nashville R. Co. v. Kemp, 140 Ga. 657 (3); 661, 79 S. E. 558), and the evidence for the defendant to the effect that the brace-rod had been already cut or was broken at the time of the accident, and was lying loose in the car when brought to the place of the injury, is altogether uncontradicted save by the plaintiff’s conclusion based upon his testimony as to the appearance of the rod and the bulging out of the car sides at the time he was drawn down into the hopper. We fully agree with counsel for the defendant in error that a brace which had withstood the strain of unrelieved lateral pressure, caused by a full load of clinkers, would not be expected to give way immediately after a portion of the load had been removed, and after all, ór at least a very large part, of the lateral pressure had been relieved by the center and downward flow of the clinkers through the open hoppers. It is proper, of course, to take notice of the elementary natural laws of universal application. Rome Ry. & Lt. Co. v. Keel, 3 Ga. App. 169 (2) (60 S. E. 468). We are not, however, prepared to say that, had the plaintiff actually testified that such was the ease, we would be justified in discarding such evidence as being legally impossible or inherently and absolutely absurd. The view that we take of the case is, that, even were it possible to assume that the breaking of the brace-rod at the timé alleged could in anv way have contributed to the injury, the evidence on this point is not actually in conflict, and the conclusion of the plaintiff that it must- have happened at the time alleged, — • that is, that the rod must have broken immediately after most-, if not all, of the strain to which it had been subjected had been removed,— is so highly improbable that no reasonable deduction or inference can be drawn sustaining such theory from the circumstances testified "to, especially where the circumstances themselves are not inconsistent with the direct and unimpeached testimony for the defendant.

Judgment affirmed.

Stephens and Bell, JJ., concur.