Georgia Railroad & Banking Co. v. Phillips , 78 Ga. 619 ( 1887 )

Hall, Justice.

Phillips brought suit against the Georgia Railroad and Banking Company to recover damages for the killing of his horse by the running of its cars. The case was tried twice, and there were two verdicts in favor of the plaintiff. The first was set aside upon the general grounds of the motion that it was contrary to law, evidence, etc., and a new trial ordered. A motion was made to set aside the second verdict upon the same grounds, and the court was asked to grant another new trial, which he refused.

It is clear from the evidence that the horse was killed by the running of the cars of the railroad company; indeed, that fact is not contested. The railroad, in order to rebut the presumption arising from this injury, attempted to show, and did show by its engineer, that he was in the exercise of all ordinary care and diligence in running the train and did everything in his power to avoid the casualty. Evidence, however, was given in rebuttal of his statement; and although that evidence was not of a very convincing character, still it tended, in some measure, to contradict his account of the occurrence and to sustain the presumption of negligence which the law raised against the company upon proof of the killing of the animal. Adding the interest, the second jury found about the same amount as the former jury did in the case, and while we might not have concurred in the verdict had we been of the jury, we are not at liberty to place ourselves in their position. It was within their province, not ours, to pass upon the questions submitted, and under the settled rules of the court, we shall be compelled, especially where there have been two concurring verdicts, to affirm this judgment. But we do not allow the damages which the defendant in error asked for bringing this case here, as he insists, for delay only. He has already gotten all, and perhaps more than he should, under the circumstances, have recovered.

Judgment affirmed.