Central of Georgia Railway Co. v. Stiles , 139 Ga. 49 ( 1912 )

Lumpkin, J.

The plaintiff sued the defendant, seeking to recover damages for the killing of a mare alleged to be of the value of $250. The jury found for the plaintiff $316.63, which was the amount alleged to be the value of the mare, with interest added to the date of the trial. The allegation as to value was the only one which might be considered as an ad damnum clause in the petition. The defendant moved for a new trial.- The court overruled the motion on condition that the plaintiff would write off the amount found in excess of $250, which was done. The defendant excepted.

1. The court charged several times to the effect that if the plaintiff showed that the mare was killed by the operation of the defendants .train, the law would presume that the defendant was negligent, and the burden of proof would then be shifted to the defendant to satisfy the minds of the jury “to a reasonable and moral certainty” that its officers and employees exercised all ordinary and reasonable care and diligence to prevent, the injury. This has been held to be error. Supreme Conclave Knights of Damon v. Wood, 120 Ga. 328 (2), 329 (47 S. E. 940); Brown Store Co. v. Chattahoochee Lumber Co., 121 Ga. 809 (4), 812 (49 S. E. 839).

2. The charge set out in the second headnote, if considered as an exhaustive statement of what would relieve the defendant from liability, was somewhat restricted. It coupled conjunctively freedom from negligence on the part of the employees of the railroad with volitional conduct on the part of the mare, as if both were necessary to a successful defense. This may not have been intended, and the charge might furnish no ground for a new trial if the general charge correctly showed what would suffice to free the defendant from liability. In the present case, however, the portions of the charge which might have effected that result were infected with the error stated in the first division above.

3. The third headnote needs no elaboration.

4. Under the ruling of the presiding judge, the plaintiff wrote off the interest which the jury added to the proved value of the. mare. If the charge in regard to interest was subject to criticism, it would not require a new trial.

Judgment reversed.

All the Justices concur.