Southern Railway Co. v. Frix , 137 Ga. 607 ( 1912 )

Fish, C. J.

1. The evidence submitted in behalf of the plaintiff showing that his horses ran along the railway track ahead of the train, of their own accord, until, reaching a trestle, they fell into it and were injured, and that the train was moving very slowly, hardly faster than a man could walk, so that the horses had time to escape, and that the whistle was continuously blown to frighten them from the track, and that the disaster was caused by the horses following the track, when the character of the embankment along which they were running was such that they might have left the track without going upon the trestle, the plaintiff failed to prove a cause of action against the railway company, and the court erred in not granting a nonsuit. Gag v. Wadley, 86 Ga. 103 (12 S. E. 298).

2. Under the allegations of the petition, the embankment and obstructions along it were such as to render it impossible for the horses to leave the track; and therefore the petition as amended .was not subject to demurrer.

3. As a nonsuit should have been granted, it is unnecessary to pass upon the grounds of the motion for a new trial.

Judgment reversed.

All the Justices concur, except Bill, J., not presiding. Maddox, McCamy & Shumate and F. A. Cantrell, for plaintiff in error. J. G. B. Brwin Jr., contra.