Georgia Southern & Florida Railway Co. v. Young Investment Co. , 119 Ga. 513 ( 1904 )

Candler, J.

Further than what is announced in the head-notes, it is only necessary to add that this case does not come within the rules laid down in the cases cited in the brief of counsel for the plaintiff in error, which hold, in effect, that where there is no contradiction to the evidence of the employees of the railroad company, that at the time of the occurrence under investigation they were in the exercise of all ordinary care and diligence, and that everything possible was done to stop the train in time to avoid an accident, but without avail, a verdict in favor of the plaintiff can not stand. In the present case an eye-witness testified that the plaintiff’s cow got on the track at least one hundred yards in front of the train which struck her; that the track was straight at this point and on a grade which the train was ascending; that the employees of the train knew of the presence of the cow on the track, as was evidenced by their giving the usual alarm to frighten stock off the track; and that the train did not slow up at all from the time the cow first got on the track, as it would have been impossible for it to have gone over the grade if it had done so. This was in direct conflict with the evidence of the engineer, to the effect that the cow came on the track about thirty or forty feet in front of the engine, and that he made every effort possible to stop the train before striking her, 'but could not do so. The evidence for the plaintiff clearly established its right to recover. A jury of twelve men, under a fair charge from an able judge, weighed all the testimony and resolved the conflict in favor of the plaintiff; their verdict and the rulings of the city-court judge on the trial were reviewed and approved by the judge of the superior court, and we can not say as. matter of law that there was any error in refusing the certiorari.

Judgment affirmed.

All the Justices concur, except Simmons, G. J., absent.