Opinion
32439.
DECIDED APRIL 29, 1949.
Damages; from Hinesville City Court — Judge Caswell. January 11, 1949.
J. T. Grice, Bouhan, Lawrence Williams, for plaintiff in error.
W. F. Mills, contra.
Where it is shown that injury was inflicted by the running of a railroad train, a presumption of negligence arises against the railroad, but the presumption is overcome by evidence on behalf of the railroad showing the exercise of ordinary and reasonable care and skill, and, in the absence of any evidence to discredit or contradict this evidence or to show negligence on the part of servants of the railroad, it is controlling, and a verdict for the plaintiff is unauthorized.
DECIDED APRIL 29, 1949.
O. C. Martin Sr. sued Atlantic Coast Line Railroad Company in the City Court of Hinesville for $100 damages on account of the killing of his cow by one of the defendant's trains near McIntosh Station and mile post 523 in Liberty County.
On the trial of the case, the plaintiff testified that he found the remains of the cow, which he identified as his cow, alongside the track of the defendant, on Monday, July 5, 1948; and another witness testified to the effect that the cow was killed on Saturday evening, July 3, 1948, by the defendant's train No. 57, and that he heard the train whistle blow as it passed. The engineer of train No. 57 testified: that the train stopped at McIntosh Station on July 3, 1948; that, proceeding south from the station, it picked up speed and was going about 40 miles per hour when it struck and killed a cow about 1 1/4 to 1 1/2 miles from the station, at about 8:15 p. m.; that at the time the headlights were burning and were adjusted to suit the roadbed and nothing lower; that at 8:15 p. m. it was dark; that he blew for a crossing 200 feet from where the cow was killed; and that, although keeping a constant lookout, he first saw the cow when approximately 50 feet away, at which time the cow was approaching the track, coming up a little incline to the roadbed level, and within 8 feet of the track; that the cow walked to the center of the track and stopped; that when he saw the cow he gave the cattle alarm, opened the cylinder cocks, and applied the brakes; but that the train, at the speed at which it was operating, would go around 50 feet before the brakes would take effect; that there was nothing he could do to avoid hitting the cow; that the track is straight for several miles at this point; and that at that time the foliage was greener and higher alongside the track than at any other time between July and September. After this testimony the plaintiff was recalled as a witness and testified that there was not enough foliage at the time and place in question to hide an ordinary dog, no more than just a little grass, and no bushes, although at other lower places along the track the foliage is high enough to hide a cow; and that, as he did not know how the lights were, in shining on the side, he could not say how far the engineer could see a cow.
The jury returned a verdict for the plaintiff, judgment was rendered accordingly, and the defendant excepted to the overruling of a motion for new trial.
On the trial of an action against a railroad for damages done to persons and property, proof of injury inflicted by the running of locomotives or cars is prima facie evidence of the want of reasonable care and skill on the part of servants of the railroad in reference to such injury. Code, § 94-1108. This is only a rule of evidence. Western Atlantic Railroad v. Gray, 172 Ga. 286 (12) ( 157 S.E. 482). The presumption thus created is overcome by the introduction of evidence of the exercise of reasonable care and skill on the part of servants of the railroad at the time and place in question, and this evidence cannot be arbitrarily disregarded; but, in the absence of any evidence to discredit or contradict this evidence of ordinary and reasonable care and skill on the part of the servants of the railroad, and in the absence of any evidence of negligence on the part of the servants of the railroad, at the time and place in question, it is controlling, and a verdict in favor of the plaintiff is not authorized. Southern Ry. Co. v. Russell, 46 Ga. App. 772 ( 169 S.E. 245); Savannah Atlanta Ry. Co. v. DeBusk, 68 Ga. App. 529 ( 23 S.E.2d 529); Jones v. Powell, 71 Ga. App. 202 ( 30 S.E.2d 446). Code § 94-1108 was codified from the act of 1929 (Ga. L. 1929, p. 315). For rulings to the same effect made prior to the act of 1929, see Macon Augusta Railroad v. Newell, 74 Ga. 809; Georgia R. Bkg. Co. v. Wall, 80 Ga. 202 ( 7 S.E. 639); Central of Georgia Ry. Co. v. Neidlinger, 110 Ga. 329 ( 35 S.E. 364); Southern Ry. Co. v. Cook, 121 Ga. 416 ( 49 S.E. 287); Western Atlantic R. Co. v. Clark, 121 Ga. 419 ( 49 S.E. 290); Augusta Southern R. Co. v. Carroll, 7 Ga. App. 138 ( 66 S.E. 403); Macon, Dublin Savannah R. Co. v. Hamilton, 9 Ga. App. 254 ( 70 S.E. 1126); Atlantic Coast Line R. Co. v. Whittaker, 10 Ga. App. 207 ( 73 S.E. 34); Atlantic Coast Line R. Co. v. Cox, 11 Ga. App. 384 ( 75 S.E. 268); Whiddon v. Atlantic Coast Line R. Co., 21 Ga. App. 377 (2) ( 94 S.E. 617); Atlantic Coast Line R. Co. v. Martin, 33 Ga. App. 176 ( 125 S.E. 778).
The plaintiff and one other witness in his behalf testified as to the killing of the cow, which was admitted by the engineer, who testified as to the facts of the occurrence; his testimony being that he did not see the cow until it was within 8 feet of the track, moving toward the track, and the locomotive was only 50 feet away; that he was looking ahead constantly; that it was dark; that the headlights were adjusted to shine on the roadbed, not below it; that the cow was coming up a little 3 to 5 foot fill and ran onto the track; that he sounded the cattle warning and applied the brakes; but that there was no way to stop the train in time to avoid hitting the cow. There is no evidence which in any way contradicts this testimony. The engineer also testified that at the time of this occurrence in July the foliage alongside the tract was higher and greener than at any other time between July and September. When recalled as a witness after the engineer had testified, the plaintiff testified that there was not enough foliage to hide an ordinary dog, and also testified that he did not know how the lights on the train were, in shining on the side, and that under the conditions he would not say how far the engineer could see the cow. There is no material conflict in the testimony of the engineer and that of the plaintiff as to the actual facts of the killing of the cow in this case. What was done by the engineer, in the exercise of ordinary care to avoid hitting the cow, is entirely uncontradicted, and in no way discredited. There is no evidence of negligence on the part of the defendant railroad and its servants. Under these facts and the law applicable thereto, the verdict for the plaintiff was unauthorized, and the trial judge erred in overruling the defendant's motion for a new trial.
The case of Central of Georgia Ry. Co. v. Grace, 46 Ga. App. 101 ( 166 S.E. 684), cited and relied upon by the defendant in error, is distinguishable on its facts from the present case. In that case there was a sharp conflict in the material evidence, the engineer and the fireman testifying that they were looking ahead and did not see the cow until about 200 feet away, that it would take about 300 feet to stop the train, that the engineer did everything possible to avoid hitting the cow, and that it was difficult to see on that morning on account of cloudy and foggy weather, and on account of the woods being on fire creating a heavy smoke, and the plaintiff testifying that the morning was clear and bright, and that there was no fog or smoke from burning woods. The cases of Southern Ry. Co. v. Freeman, 58 Ga. App. 403 ( 198 S.E. 717, and Savannah Atlanta Ry. Co. v. DeBusk, supra, cited by the defendant in error, do not authorize or require a ruling in the present case different from the one here made.
Judgment reversed. Felton and Parker, JJ., concur.