Cordray v. Savannah, Thunderbolt & Isle of Hope Railway , 117 Ga. 464 ( 1903 )

Lamar, J.

The plaintiff, while driving his wagon across the tracks of the railroad company, suffered damage, and he obtained a verdict. The court granted a new trial. The plaintiff excepted, but does not'bring the case within the exception of the Civil Code, •§ 5585. We are not, therefore, authorized to disturb the finding by the lower court, even though the motion was granted for a specific reason, which may or may not have required a new trial. Weinkle v. Brunswick R. Co., 107 Ga. 367 (1).

The railroad company, by cross-bill of exceptions, raises the question as to whether, as a street-railroad company, it is within the purview of the Civil Code, § 2321, making railroad companies liable for damage done “ by the running of the locomotives, or cars, -or other machinery of such company, . . the presumption in all cases being against the company.” It argues that the ruling in Augusta & Summerville R. Co. v. Renz, 55 Ga. 126, and Electric Railway Co. v. Carson, 98 Ga. 652, holding that the presumption arose against street-railroad companies, is not conclusive, inasmuch as the persons there injured were passengers. It claims that at common law a presumption arose in favor of the passenger against the carrier, wherever injury occurred, and that in Augusta & Summerville R. Co. v. Randall, 79 Ga. 314, and in Central R. Co. v. Brinson, 70. Ga. 223, 224, the court had held that the presumption set out in section 2321 was of common-law origin, and did not come from the act of 1856. Wherever a passenger was injured by a derailment, a collision, or as a result of any defect in the means of transportation, or as a result of the operation thereof,' a presumption did arise, at common law, against the carrier. Res ipsa loquitur. But it is not true that in every case where a passenger was injured a presumption arose, at common law, that the company was at fault. Holbrook v. Utica Ry. Co., 12 N. Y. 236; Herstine v. Lehigh Valley R. Co., 151 Pa. St. 244. Even if it were a common-law presumption, ic might still be made statutory, and extend beyond the limits fixed at common law. The decisions in the Benz and Carson cases are important as showing that in both the court treated a street-railroad as within the section and applied the statutory presumption applicable to railroads. It was as much as to say that they were railroad companies; and in the Carson case the court cited the statute as applicable to a street-railroad in a case where the injured person was not a passenger, and where the presumption in favor of the plaintiff would not have arisen at common law. There is as much reason for making this presumption apply to companies whose tracks are laid in the streets of populous ..cities as to those whose rails are laid in country districts. The case is controlled by the ruling in Savannah etc. Ry. v. Williams, 117 Ga. 414.

Judgment on the main and cross-bills of exceptions affirmed.

By five Justices.