Warfield v. Hepburn ( 1911 )

On Repiearing.

Per Curiam.

— A determination of the liability of the defendant was necessarily involved in affirming the judgment awarding damages to the plaintiff Amelia Hepburn. There-is evidence that the plaintiff Amelia Hepburn was injured by the derailing of the car in which she was a passenger while it was being run at a rapid rate of speed through a dense fog and smoke over a track that a few hours before and unknown to the train crew had been partially destroyed by fire. The statute affords a presumption of negligence and consequent liability of the defendant upon proof of tbe injury to tbe plaintiff by tbe running of the railroad company’s train, and tbe evidence does not entirely rebut tbe statutory presumption, since it does' not clearly appear that “all ordinary and reasonable care and diligence” to prevent tbe injury was exercised by tbe defendants whose duty it was to use tbe highest degree of care and diligence for tbe safety of passengers. Tbe evidence as to the speed of tbe train in tbe presence of a dense fog and smoke' before and at tbe time tbe train reached tbe burned track indicates at least some lack of due care and diligence for tbe safety of passengers. This establishes tbe liability of tbe defendants and tbe amount of damages that should be allowed on tbe evidence was adjudicated in affirming the judgment..

Whitfield, C. J., and Taylor, J., are of opinion that tbe evidence does not support tbe amount of tbe damages awarded in tbe finding and judgment.

A rehearing is denied.