None of these above facts which show that the proposed building was a new structure were contradicted by plaintiffs. The trial court found these uncontradicted facts to be sufficient to demand a finding that the trustee acted in good faith with the ordinary diligence of a prudent man in determining that the conditions of the trust were fulfilled. The issue of ordinary care need not be submitted to the jury where the undisputed facts show the exercise of ordinary care. Atlantic C. L. R. Co. v. Carver, 81 Ga. App. 26 ( 57 S.E.2d 692). Plaintiffs' only evidence submitted in opposition to defendant's motion for summary judgment was the affidavit of an architect who gave his professional opinion that the project consisted of remodeling the existing sanctuary and therefore did not result in a "new" sanctuary building. The issue, however, is not whether the building was "new" or "old" but whether the trustee acted with ordinary diligence as required by Code § 108-402.
We have carefully studied this case in which the writer participated and we find nothing that would justify us in affirming the instant case. Counsel also cite Atlantic Coast Line R. Co. v. Carver, 81 Ga. App. 26 ( 57 S.E.2d 692). In that case this court did not hold that the burden of proof shifted from the defendant to the plaintiff but simply held that the burden of producing evidence was upon the defendant.
Only when the engineer sees, or by the exercise of ordinary diligence could see, that an animal in proximity to the track is in danger of getting on it in front of the moving train is he charged with the duty of exercising all reasonable diligence to check the train and to avoid killing or injuring the animal." Augusta Southern R. Co. v. Carroll, 7 Ga. App. 138 (1) ( 66 S.E. 403). Also, see Southern Ry. Co. v. Eubanks, 117 Ga. 217, 221 ( 43 S.E. 487); Atlantic Coast Line R. Co. v. Carver, 81 Ga. App. 26 ( 57 S.E.2d 692); Powell v. Rogers, 75 Ga. App. 165 ( 42 S.E.2d 573); Southern Ry. Co. v. Russell, 46 Ga. App. 772 ( 169 S.E. 245); and compare Atlantic Coast Line R. Co. v. Walker, ante, p. 605. The verdict for the plaintiff was not authorized, and the court erred in denying the defendant's motion for a new trial.
Rowe v. Camp, 45 Ga. App. 794 ( 165 S.E. 894); Moore v. Shirley, 68 Ga. App. 38 (3) ( 21 S.E.2d, 925). As we have stated, it is our opinion that the evidence here was ample to authorize a verdict finding that the defendant, through his mother and agent, was grossly negligent, and that as a result the plaintiff, his infant sister, was injured. The facts in the present case are not analogous, as contended by the defendant, to those before the court in A. C. L. R. Co. v. Carver, 81 Ga. App. 26 ( 57 S.E.2d 692). The sole conclusion to be reached from the facts appearing in the present case is not that the defendant's acts do not amount to negligence, and such cases as Georgia Power Co. v. Blum, 80 Ga. App. 618 ( 57 S.E.2d 18), are not applicable. The case under consideration is not similar to such cases as Tucker v. Andrews, 51 Ga. App. 841 ( 181 S.E. 673), and Minkovitz v. Fine, 67 Ga. App. 176 ( 19 S.E.2d 561), where as a matter of law the jury were without authority to return the verdict rendered and no question was presented for their determination. The evidence authorized the verdict for the plaintiff and the same is not contrary to law.
It has been held several times that `the inference created by proof of injury by running of the defendant's cars is at an end when the defendant has produced some evidence to the contrary'; and `the statute has served its purpose when it compels the railroad to explain how the injury occurred, and the question of negligence or no negligence is to be decided by the facts of the case.'" See also Atlantic Coast Line R. Co. v. Carver, 81 Ga. App. 26 (1) ( 57 S.E.2d 692). For other cases on this same principle see Atlantic Coast Line R. Co. v. Mercer, 82 Ga. App. 312 ( 60 S.E.2d, 649); Atlantic Coast Line R. Co. v. Hodges, 79 Ga. App. 563 565 ( 54 S.E.2d 500); Atlantic Coast Line R. Co. v. Martin, 79 Ga. App. 193 ( 53 S.E.2d 176). See also in this connection Parrish v. Southwestern R. Co., 57 Ga. App. 847 ( 197 S.E. 66).
In Georgia, cause of action has been defined as all the facts which together constitute the plaintiff's right to maintain the action. Parris v. Atlanta K. N. R. Co., 128 Ga. 434, 437 ( 57 S.E.2d 692). It is urged that the third-party plaintiff's cause of action for indemnity would not accrue until it could call upon the third-party defendant to indemnify it for the loss sustained, citing Southern Nitrogen Co. v. Stevens Shipping Co., 114 Ga. App. 581 ( 151 S.E.2d 916); Central of Ga. v. Woolfolk Chemical Works, 122 Ga. App. 789, 797 ( 178 S.E.2d 710).