1 Ga. App. 814 | Ga. Ct. App. | 1907
This suit originated in a justice’s court, and was brought by the defendant in error, to recover damages for the killing of his cow by the railroad company. On the trial before the justice, a judgment was rendered in favor of the defendant in error. The plaintiff in error thereupon appealed to a jury, when a verdict for forty dollars was returned in favor of the defendant in error. The ease was then carried by certiorari to the superior court. The answer of the justice was an adoption of the
Three witnesses testified that they saw the killing of the cow. One of these, Albert Gordon, who was introduced by the plaintiff, testified (according to the petition for certiorari), that the animal killed was walking alongside the track, about six feet from the ends of the ties; that the track at this point was laid upon an embankment; and that the stock alarm was not sounded until just about the time the cow was stricken by the engine. Loughbridge (the plaintiff) testified, that he saw the striking of the cow by the train; that he saw the train approaching, and at that time the cow was walking up the track just at the end of the ties; that the train was, at the time of his first observation, the distance of six or seven telegraph poles from the cow; that he turned and looked again just as the stock alarm was sounded, and saw the cow up in the air, where she had been knocked by the engine. Lough-bridge and another witness testified as to the ability of the engineer (had he been on the lookout) to have seen the cow for a distance of six or seven telegraph poles (approximately fifty yards apart), or between three and four hundred yards. The engineer testified, that as he approached the place of the accident (it being on an embankment where the track cujved to the right) he was looking ahead, but could see nothing of the cow; that she suddenly came up from the side of the embankment and on the track, and was struck before he had time to do anything to save her. The fireman’s evidence, in one aspect, tended to corroborate that of Loughbridge and his witness, that the blowing of the stock alarm and the striking of the cow were simultaneous; because he testified, that he did not see the cow at all; that he heard the engineer blow the stock alarm, looked up from his work, firing the engine, and asked the engineer what was the matter, and the engineer replied, “We struck a cow.”
The plaintiff in error insists that its certiorari should have been sustained, because the killing of the cow, in any view of the foregoing evidence, was an unavoidable accident, and that the
Judgment affirmed.