Opinion
33113.
DECIDED JULY 7, 1950. REHEARING DENIED JULY 20, 1950.
Appeal; from Coffee Superior Court — Judge Thomas. March 16, 1950.
Matthews, Long Hendrix, Dewey Hayes, R. A. Moore, for plaintiff in error.
Grantham Smith, contra.
1. The demurrers to the petition were properly overruled.
2. It was not error to admit in evidence in this case testimony that the engineer did not decrease the speed of the train.
3. Whether or not the whistle was blown, and whether or not a failure to blow the whistle or ring the bell would amount to a failure to exercise ordinary care, which was the proximate cause of the killing of the cow, were issues for determination by a jury.
4. The trial judge did not err in overruling the motion for a new trial.
DECIDED JULY 7, 1950. REHEARING DENIED JULY 20, 1950.
This was an action by E. L. Mercer against the Atlantic Coast Line Railroad Company for damages for the killing of a cow by a locomotive operated by the defendant, and it originated in the Justice Court for the 1556 District G. M. Coffee County. After judgment for the plaintiff in that court the case was brought on appeal to Coffee Superior Court.
In the petition negligence was alleged: "(a) In that the engineer and or other employees of said defendant did not blow the whistle of said double-header or give some other warning of sufficient nature on approaching the said cow on their tracks. (b) In that the said engineer and or other employees of said defendant did not attempt to stop or slack the speed of said double-header before striking said cow. (c) In that the driver of said double-header did not keep the proper lookout ahead and be in a position to stop before striking said cow. (d) In that the said engineer and or other employees of said defendant did not stop the double-header after striking said cow. (e) In that the engineer and or other employees of said defendant was proceeding at a rate of speed far in excess of a safe speed knowing that there were cows and other animals in the vicinity of the railroad tracks upon which they were operating. (f) In that they did not give said cow sufficient time and an opportunity to get off said tracks before being struck." Special and general demurrers to the petition were overruled, exceptions pendente lite were filed, and the case proceeded to trial before a jury.
Ira Phillips, sworn as a witness for the plaintiff, testified that: Between 2 and 3 p. m. on June 14, 1948, he was near the railroad tracks of the defendant between mileposts 641 and 642, and saw a short double-header freight train of the defendant proceeding north which struck and killed a red cow with a white face belonging to the plaintiff and worth $150. After the train struck the cow the animal was torn to pieces and scattered up and down the tracks. The animal was struck about 150 yards beyond a cut on the right-of-way on a curve. Where the cow was hit the embankment was about 3 or 4 feet high, and 150 yards back it was 10 or 12 feet high. The cow ran on the track and down it. The speed of the train was about 35 or 40 m.p.h. From the end of the curve to where the cow was killed was about 100 yards, and the fireman could have seen the cow from this point. The whistle was not blown and if a bell was rung he did not know it.
The plaintiff testified that: The cow was worth $150. He could see the place where the cow was killed from a point as far as 200 yards in the direction from which the train approached. This was open range country. F. R. Griffin, sworn as a witness for the plaintiff, testified that he had tried to buy the cow and would have given $150 for the animal.
E. A. Evans, sworn as a witness for the defendant, testified that: He was employed on or about June 14 or 15, 1948, as a locomotive engineer for the defendant in charge of train No. 212, engine No. 7209, and on said date his engine struck a cow between mileposts 641 and 642, or about milepost 641. He saw the cow just an instant before the engine struck the animal, at which time the cow was not more than 50 feet in front of the engine. The estimated speed of the train was 40 m.p.h. When he first saw the cow, the animal was crossing the track, and the locomotive was coming out of a curve onto a straight stretch of track. The whistle was being sounded for a crossing, and when the cow was observed this was changed to an alarm signal, a succession of short blasts. He made no application of the brakes as it would have been humanly impossible to stop or reduce the speed of the train before striking the cow. An application of the emergency brakes would not have reduced the speed of the train in time to avoid striking the cow, and might have injured the crew riding on the train. The train was not a double-header. There might have been an engine being towed. To have stopped the train by application of the emergency brakes would have required a distance of about a quarter of a mile. It was about 50 feet from the end of the curve to where the cow was killed, and it was not possible to see the cow before reaching this point. The cow was a black cow, as best he remembered.
The testimony of K. Walker, sworn as a witness for the defendant, is substantially the same as that of the engineer. He was the fireman on the locomotive and from his position was able to see the cow sooner than the engineer, and he warned the engineer that there was a cow on the tracks and the engineer started blowing a series of short blasts on the whistle, but did not apply the brakes. This witness did not ring the bell.
G. W. Rhoden, who was sworn as a witness for the defendant, testified that he was a section master for the defendant and was familiar with the track where the cow was killed. He described the track in this vicinity and gave his opinion that a person sitting in the seat box of a locomotive could not see where the cow was killed until the locomotive was past the curve.
The jury returned a verdict for the plaintiff for $150 and judgment was rendered accordingly. The defendant moved for a new trial and the motion was overruled. The case is here on exceptions to the overruling of the demurrers to the petition and to the overruling of the motion for a new trial.
1. The demurrers to the petition consisted of a general demurrer and a demurrer to language used in the petition as being vague, indefinite, insufficient, or mere surplusage. These demurrers were all overruled, exceptions pendent lite were filed, and error assigned on the rulings in the bill of exceptions. No argument or insistence in regard to a ruling upon this assignment of error is made unless a statement in one of the briefs of the fact that error was assigned on the rulings followed by a citation of the case of Flint River Northeastern R. Co. v. Sanders, 18 Ga. App. 766 ( 90 S.E. 655), involving rulings on demurrer, could be so construed. However, no attempt is made to show wherein any of the rulings made in that case would authorize or require a reversal of the rulings on demurrer in the present case, and a comparison of that case with the present case fails to reveal wherein any ruling there made could be so applied. Whether or not under these circumstances the assignment of error on the rulings on demurrer has been abandoned, this court is of the opinion that the demurrers were without merit. In the petition facts are alleged showing that a cow belonging to the plaintiff was killed by a train operated by the defendant on account of the negligence of its agents or employees in such operation, and that this occurred in the county in which the action was brought, and these alleged facts are stated in reasonably clear and understandable language. A cause of action was stated, and the special demurrers of the defendant fail to indicate any substantial defect in form. Under such circumstances it was proper for the trial judge to overrule all demurrers of the defendant to the petition.
2. In the only special ground of the motion for a new trial error is assigned on the admission in evidence of the testimony of Ira Phillips, over objection, that the engineer did not decrease the speed of the train. As reason therefor it is asserted that it misled the jury into the belief that it was the duty and obligation of an engineer to slow a train or locomotive when cattle came unexpectedly upon the track, even though the applying of emergency brakes might endanger the lives of persons on said train, and that it was likewise a duty to slow the train even after it had struck the cow in this instance. One of the allegations of the plaintiff was that the negligence of the defendant or its agents or employees which caused the killing of the cow was a failure to decrease the speed of the train, and the testimony was admissible in support of this allegation. Furthermore, as was subsequently developed by testimony for the defendant, the fact that the speed of the train was not decreased was not only uncontradicted, but was admitted, the testimony of both the engineer and the fireman clearly indicating that no attempt whatsoever was made to decrease the speed of the train. It clearly appears that the only contention of the defendant in this respect was that it was impossible to decrease the speed of the train after the cow was seen but before the animal was struck, and that to apply the emergency brakes might endanger members of the crew on the train at the time. This ground of the motion is without merit.
3. The sole remaining issue in this case is whether the verdict was authorized by the evidence. It is well-settled law that in a case of this kind proof of damage 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 damage, that this is a rule of evidence, and that the presumption thus created is overcome by the introduction of evidence of the exercise of reasonable care and skill on the part of the servants of the railroad at the time and place in question, and such evidence is controlling, if not discredited or contradicted, in the absence of any evidence of negligence on the part of such servants at the time and place in question. See Code, § 94-1108; Atlantic Coast Line R. Co. v. Martin, 79 Ga. App. 194 ( 53 S.E.2d 176), and cases cited therein. It appears that the contention of the defendant is that the evidence of reasonable care and skill on the part of its servants was not discredited or contradicted and overcame any presumption, that there is an absence of any evidence of negligence on the part of such servants, and that a verdict for the defendant was demanded. This contention cannot be sustained. The plaintiff did not attempt to rely in the first instance upon any presumption of negligence, but went ahead and introduced evidence in support of certain of the allegations of negligence. Phillips testified for the plaintiff that the whistle was not blown and that he did not hear any bell being rung. Thereafter, Evans and Walker, the engineer and fireman, testified for the defendant that the whistle was blown, a series of short blasts, as a warning signal. There is no evidence for the defendant indicating that a bell was ever rung. Whether or not the whistle was blown, and whether or not a failure to blow the whistle or ring the bell would amount to a failure to exercise ordinary care, which was the proximate cause of the killing of the cow, were issues for determination by a jury. Under the circumstances of this case, a verdict was authorized for the plaintiff on account of issues as to negligence and proximate cause as to omissions on the part of the servants of the railroad. See and compare Central of Georgia Ry. Co. v. Grace, 46 Ga. App. 101 ( 166 S.E. 684); Powell v. Nelson, 52 Ga. App. 351, 354 (3) ( 183 S.E. 348); Southern Ry. Co. v. Freeman, 58 Ga. App. 403 ( 198 S.E. 717). This case is clearly distinguishable from the Martin case, supra, and similar cases cited and relied upon by counsel for the defendant, and the numerous cases cited in the Martin case, where the only basis for a verdict for the plaintiff was the initial presumption of negligence on the part of the defendant which arose by proof of damage inflicted by the operation of a train, which presumption had disappeared because of the evidence adduced by the defendant showing the exercise of reasonable care and skill on the part of its servants at the time and place in question.
4. Accordingly, the trial judge did not err in overruling the motion for a new trial.
Judgment affirmed. Felton and Worrill, JJ., concur.