126 Ga. 710 | Ga. | 1906
When it was shown by the evidence that the deceased came to his death by the running of the locomotive, cars, and other machinery by the agents and servants of the defendant ■engaged in the operation thereof, the statutory presumption specified in the Civil Code, § 2321, arose. Under the provisions of the statute just referred to, the liability of the railroad company, when once established by presumption, will remain, “unless the company, shall make it appear that their agents have exercised all ordinary and reasonable care and diligence.” Under no view of the evidence could it be said that the defendant has shown its agents to' have been in the exercise of all ordinary and reasonable care and diligence at the time of the commission of the homicide. They were running through a town and over a public crossing where they had reason to anticipate the presence of persons. The deceased was where he had a right to be,' — -in the street. The ground was-
It is insisted, however, that the plaintiff’s husband, by the exercise of ordinary care and diligence upon his own part, could have avoided the consequences of the defendant’s negligence, and for that reason the plaintiff could not recover. The burden of proof rests upon the defendant to establish this defense. Civil Code § 5160; Falkner v. Behr, 75 Ga. 671; City Council of Augusta v. Hudson, 88 Ga. 599 (3); Georgia Midland R. Co. v. Evans, 87 Ga. 675. This, of course, may be accomplished by the plaintiff’s evidence, if it so authorizes. But the rule applies only after 'the defendant’s negligence begins and its existence becomes apparent. Brunswick R. Co. v. Gibson, 97 Ga. 497; Western & Atlantic R. Co. v. Ferguson, 113 Ga. 708; Atlanta, K. & N. Ry. Co. v. Gardner, 122 Ga. 82 (4). If, after the negligence of the defendant commenced, the deceased became aware thereof, or by the exercise of ordinary care-, should have become aware thereof, and then and thereafter failed to exercise ordinary and reasonable care and diligence for his own safety, there could be no recovery. The deceased’s want of ordinary-care is a question for the jury, concerning which they are exclu
Judgment reversed.