Western & Atlantic Railroad v. Robinson

119 Ga. 331 | Ga. | 1904

Simmons, C. J.

When this case was here before, this court decided that the positive and uncontradicted evidence of the servants of the company overcame the presumption of negligence, and that the plaintiff could not recover. On the second trial the evidence was the same, except that the plaintifl introduced expert witnesses who testified that in their opinion the train could have been stopped in a shorter distance than the engineer stated. Under the ruling in the case of Central of Ga. Ry. Co. v. Waxelbaum, 111 Ga. 812, this expert evidence did not impeach or contradict the fact testified to by the engineer, that he used all the means at his command (stating what he had done), and that he could not stop the train before running over the animal. This is especially so when the experts testified that they would take his testimony as to the fact in preference to their opinion, and when also their opinion was based on the hypothesis that every car in the train was equipped with air-brakes and the evidence showed that not more than two thirds of the cars were so equipped. Judgment reversed.

Argued November 4, 1903. Decided January 12, 1904.

Action for damages. Before Judge Fite. Catoosa superior court. February 4, 1903.

Payne & Tye and B. J. & J. MeCamy, for plaintiff'in error. Payne & Payne, contra. All the Justices concur.