Opinion
33783.
DECIDED MARCH 14, 1952.
Appeal; from Effingham Superior Court — Judge Renfroe. August 1, 1951.
J. Walton Usher, Z. Vance Dasher, for plaintiff.
George W. Fetzer, Griffin B. Bell, for defendant.
The evidence demanded a verdict for the defendant, and the court did not err in directing such verdict.
DECIDED MARCH 14, 1952.
Walter Wright sued Central of Georgia Railway Company, in the Justice's Court of the 1559th G. M. District, for damages for the killing of two of his cows which he alleged was caused by the defendant's negligence is not stopping its engine and cars and avoiding the injury. The defendant answered that it was not negligent, itself or by its agents, and that the killing was caused by the cows suddenly running in the direct path of the train, so that the engineer had no warning and no opportunity to stop and avoid the injury. The justice of the peace entered judgment for the plaintiff, and the defendant appealed to a jury in the superior court. The plaintiff amended and alleged: that along the south side of the railroad the defendant caused a ditch to be dug so deep as to make it difficult, and at points impossible, for livestock to get off the road bed; that an oak tree along the edge of the right-of-way, a distance of 400 feet northwest of the point of the accident, overhangs and obstructs the view of the engineers; and that the defendant and its agents knew of livestock trails on both sides at the point of the accident. At the trial the plaintiff testified substantially: A friend told him his cows had been killed. The section foreman, employed by the railroad, told him that they were killed by the train, on the road bed, just above the highway crossing at Eden. The witness described the cows. After the accident he looked at the cows, and "they appeared to have been struck by the train, they had to be."
O. M. Shearhouse testified: He lives at Eden, just across the highway from where the cows were killed on the railroad track. The railroad caused a ditch to be dug alongside of the road bed and later deepened. Prior to the deepening there were several paths crossing the ditch. Since the deepening it is almost impossible for cows to cross the track unless they travel up and down the railroad to the crossing. He had noticed a limb on an oak tree about 400 feet above the crossing. It is an extremely heavy top oak, and it has limbs that hang over the railroad, but he didn't know whether or not it obstructed the engineer's view. He saw the carcasses of the animals. The section foreman asked him whom they belonged to, and he told him, to the darkie Walter Wright.
Calvin Burnsed testified: The cows were killed directly in front of his house at Eden. To go from his house across to Mr. Shearhouse's store, he used a footpath. Since digging the ditch it is more difficult to cross. He saw the cows after they were killed, but didn't see the accident.
G. B. Wheeler Jr. testified as follows: "On August 25th, 1950, I was an engineer and employee on the Central of Georgia Railroad. In that capacity I was operating a train on the tracks between Macon and Savannah. I was operating train No. 4. As I was approaching Eden on that morning near the 19-mile post I saw some cattle on or near the tracks of the railroad, that's right there near Eden. That was around seven seventeen in the morning. I was not on schedule time, I was ten minutes late. The weather was cloudy, as well as I remember, if I remember correctly. I am unable to say correctly whether I had passed the blow post when I saw these cows, I think I was for I was blowing the whistle at the time I first saw them. I was blowing the whistle. As to whether that would have been a crossroad blowing that I was giving, I had started the crossing blow and had seen the cows approaching on the right side and I kept blowing the cattle gong and, of course, I opened the cylinder cocks also for alarm. That is a common practice among engineers, the steam will do lots more good oftener than the whistle, and we try both sometimes. When I first saw these cows they were about forty yards from the railroad tracks, or fifty, maybe, on the side, it's sort of hard to say right at that speed. I would say I was around one thousand yards away from the cows when I first saw them, maybe around one thousand feet, or something like that, one hundred yards. One hundred yards would be about three hundred feet. I would estimate it not over two hundred yards at the outside. About two hundred yards. When I first saw the cows they both ran across the track in front of me. They were going toward the track when I first saw them, is my correct statement. They ran directly upon the track in the path of the train. I was too near the cattle at that point when I first saw them to have stopped my train, it was absolutely impossible. There was not any reason why I could have seen these cattle before they reached that point near the track when I first saw them, not a thing in the world but the trees and bushes and stuff over there next to the fence on the right hand side, side of the track. I was absolutely maintaining a constant lookout when I was coming to that crossing. I was approaching a crossing. That was the crossing of Highway 80 at Eden. I would say I was around three hundred feet, or something like that, when I struck the cows from the crossing. I did not apply my brakes. I was on the right hand side of the engine. That is the ordinary place where an engineer rides, it is where he has got to ride. The cows were coming from my right hand side. If I remember correctly there were ten cars on the train, it should be on the report there, the record. Those were Pullman, express, mail and day coaches. My rate of speed was sixty miles an hour. My schedule calls for sixty miles an hour. I did not slow the speed of the train at any point. I maintained the same speed. So far as my instructions and orders are concerned, that is considered open track at that point. As to whether I recall, from my experience in traveling back and forth on the railroad if there is a big live oak tree with a limb extending over the railroad ditch, there may be one there but it does not obstruct our view down that track."
On cross-examination, G. B. Wheeler Jr. testified: "I just stated that that limb would not obstruct my view to anything on the side of the track, just a short distance to the side of the track on the right hand side. I'm unable to answer that, the track is the only thing I am interested in whatsoever. As well as I remember I was ten minutes behind schedule on the morning of this accident and that is what I put on the report. I was traveling sixty miles an hour, that is approximately, I wouldn't swear to that even. From about two hundred yards I saw the animals start walking on the track. I saw them that far from me, not from the track now. I couldn't tell you to save my life how far they were from the track when I saw them, running that speed and watching a cow on the side of the road. As to how long they were on the track prior to the accident, well, they jumped that ditch you were talking about and they made connections, that's all, they came across there in a hurry. In other words, the cows absolutely committed suicide, a man would have done the same thing if he had stepped out there. As to what I did after passing the blow post besides blow the whistle, on that particular morning while I was going down the track, relative to the operation of the train, do you want to know exactly what I was doing? I wiped off my glasses."
Howard D. Wheeler testified substantially as follows: On August 25, 1950, he was acting as section foreman for the Central of Georgia Railroad. He investigated the killing of two cows that were struck by an engine, and found that they were the property of Walter Wright.
At the conclusion of the evidence, the court, on motion of the defendant, directed a verdict for it. The plaintiff's motion for a new trial was overruled, and he excepts to this judgment.
Although the plaintiff did not prove any specific acts of negligence chargeable against the defendant, his evidence was sufficient to show that his cows were killed by the operation of the defendant's train, and thus make out a prima facie case. "In all actions against railroad companies for damages done to persons or property, proof of injury inflicted by the running of locomotives or cars of such companies shall be prima facie evidence of the want of reasonable skill and care on the part of the servants of the companies in reference to such injury." Code, § 94-1108. "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." Atlantic Coast Line R. Co. v. Martin, 79 Ga. App. 194, 195 ( 53 S.E.2d 176). The foregoing facts show that the uncontradicted testimony of the engineer, the only eyewitness to the accident, was that he was exercising reasonable care at the time of the accident and could not have avoided killing the cows. "The action being for damages on account of the killing of a cow by a railroad train, and it appearing, from uncontradicted evidence, that the cow, which was grazing on a bank beside the railroad track, suddenly jumped down the bank and went upon the track in front of the approaching train, and that the operators of the train could not have avoided killing her, the evidence demanded a verdict for the railroad company." Greenway v. Macon, Dublin Savannah R. Co., 44 Ga. App. 541, ( 162 S.E. 168). Since there is no conflict in the evidence, and it demanded a verdict for the defendant, the court did not err in directing such verdict.
There was a dissent in the division to which this case was originally assigned, and it was considered by the whole court as provided by the act approved March 8, 1945 (Ga. L., 1945, p. 232).
Judgment affirmed. Sutton, C. J., Townsend and Carlisle, JJ., concur. Gardner, P. J., concurs in the judgment. Felton, J., dissents.
The evidence did not demand a verdict for the railroad. The engineer saw the cows at least two hundred yards in front and fifty yards to the side. There were questions for the jury to decide: (1) whether the engineer was adequately keeping a lookout ahead while wiping his glasses; and (2) whether in the exercise of ordinary care he should have slowed down his train in order to give his signals, the sounding of the cattle gong and cylinder cocks, more time to frighten the cows from the track, or give them time to cross the tracks if the warnings did not avail. The engineer testified that he did not attempt to slacken the speed of the train.