Western & Atlantic Railroad v. Clark

121 Ga. 419 | Ga. | 1904

Cobb, J.

The presumption of negligence arising against the railroad company from proof of the killing of the animal by defendant’s train was completely met and overcome by evidence for the defendant, that there was a curve in the track where the 'animal was killed, obscuring the view up the track, that the engineer and fireman were looking ahead and could not have seen the animal earlier than it was seen, and that, after discovering its presence on or near the track, the engineer did everything that could be doné to prevent the killing. In view of the positive character of the testimony for the defendant as to these matters, testimony of a witness for the plaintiff, that “ I think the steer could have been seen several hundred yards before the train reached him, if the engineer had been looking in that direction,” did not afford sufficient foundation for a verdict in the plaintiff’s favor.

Argued November 16, — Decided December 10, 1904.

Certiorari. Before Judge Fite. Catoosa superior court. August 3, 1904.

Payne & Payne, W. H. Odell, and P. J. & J. McGamy, for plaintiff in error. William E. Mann, contra.

Judgment reversed.

All the Justices'concur.