Southern Railway Co. v. Freeman

58 Ga. App. 403 | Ga. Ct. App. | 1938

Guerry, J.

1. “The evidence offered by the defendant railroad company to rebut the legal presumption of negligence was itself contradicted, and the jury were authorized to infer from the facts in the case that the killing of the mule might have been avoided by the exercise of ordinary diligence.” Southern Ry. Co. v. Edwards, 9 Ga. App. 26 (70 S. E. 194). In the present action, a suit for the killing of one cow and injury to another, the evidence for the plaintiff disclosed that the point where the cows were struck was visible for a distance of 400 yards around a curve, and' that the animals were on the track some time before they were struck. The fireman gave evidence to the contrary, and the engineer testified that he could not see the cows because of the front part of his engine in going around the curve. Questions of negligence and diligence are peculiarly for the jury, and we can not say as a matter of law that a verdict for the defendant was demanded.

2. The exceptions to the admission of evidence with respect to the curve and how far one might see around it are not well taken. The court did not err in overruling the certiorari.

Judgment affirmed.

Broyles, G. J., and MacIntyre, J., concur.