Smith v. Atlantic Coast Line Railroad , 5 Ga. App. 219 ( 1908 )

Powell, J.

(After stating the foregoing facts.)

1. Much of the discussion of the case by counsel has been upon the point as to whether the presumption of negligence attached to thé defendant upon proof that the plaintiff was injured by the explosion of a torpedo run over by the engine. Our Civil Code, §2321, provides for a presumption of negligence against railway companies where the damage is done “by the running of the locomotives or ears or other machinery, or . . by any person in the employment and service of such companies.” The presumption relates only to the particular acts of negligence set out in the petition. In this case the proximate cause of the injury is not alleged to have been any negligence in the operation of the locomotives. The word “running,” as used in this code section, does not refer so much to actual motion as it does to the general operation of the things named in the statute. Ga. Ry. & Elec. Co. v. Reeves, 123 Ga. 705 (51 S. E. 610); S., F. & W. Ry. Co. v. Slater, 92 Ga. 391 (17 S. E. 750). See Hubbard v. Macon Ry. Co., post, 223 (62 S. E. 1018). The negligent presence of the explosives in the front of the passenger station, where the presence of persons might be expected, is the gist of the present action. If the torpedoes were placed there by outsiders, it was not a case for the operation of the statutory presumption; if they.were placed or dropped there by employees, it was such a case. The burden of proving that they were placed there by an employee was therefore-upon the plaintiff; and we suppose that the trial judge granted the nonsuit on the theory that the plaintiff had not shown that they were placed or dropped there by an employee of the defendant company.

2. Under all the circumstances shown, we think that the plaintiff proved enough to make a prima facie ease, such a ease as to raise an issue for submission to the jury. The torpedoes were there as a result of an act, deliberate or negligent, either of the company’s employees or of some outsider. They were upon premises controlled by the defendant; this is of some evidentiary value, though slight. These torpedoes were a special contrivance designed for and used peculiarly in railway service; outsiders had no business with them; and especially had no right to place them on the company’s tracks. An outsider, however, might have bought, found, or stolen them, and might have put them on the track. Let us examine the time, place, and other circumstances to see if this is reasonable. The time was four o’clock, before dawn, on a winter morning; the place was in the yards of the defendant, where its employees were on duty making up and shifting trains of cars, and was in front of the passenger station, some of the rooms of which were lighted and open. Say that the object of the outsider was sport or mischievous prank — is it probable that any one would previously furnish himself with two torpedoes and then go to this open place on the premises of the railway company, in the late hours of a winter night, to hear them explode or to witness the results of their explosion ? Such things are not usually done that way. If the outsider’s purpose was sinister, he would hardly have chosen so open a location for the place of his offense, and would hardly have used a caution signal as a means of committing it. 'This theory seems unreasonable. The deliberate act of an outsider seems improbable; an unintentional dropping of two torpedoes in, such' a manner that both of them should fall on the top of the rail and balance themselves and remain there would be even more unlikely. On the other hand, if the employees, for some purpose in hand, connected with the moving of the trains in the yard, had found it more convenient to use torpedoes for a signal, instead of the ordinary means of signaling, the very fact that there was a rule against using them in the yards would be a reason why they would choose to use them there only in the dark hours of the morning, when the violation of the rule would be least likely of ■detection. The presence of a single torpedo would not make so strong a case against the employees as does the fact that there were two of them. In the first place, one would serve any probable purpose of an outsider as well as two; on the other hand, the arrangement of two torpedoes is a regular train signal, such as an. ■employee would give and an engineer would recognize.

While a plaintiff who relies upon circumstantial evidence for the establishment of the case must raise more than a mere suspicion, and must reasonably establish the theory relied upon; yet in the present case there was more than “a mere scintilla of inconclusive circumstances” — there was “scope for legitimate reasoning by the jury.” Georgia Ry. & El. Co. v. Harris, 1 Ga. App. 714 (57 S. E. 1076). “In arriving at a verdict, the jury, from facts proven, and sometimes from the absence of counter-evidence, may infer the existence of other facts, reasonably and logically consequent on those proved.” Civil Code, §5157. By comparing the present circumstances with those relied on by the plaintiffs in many of the suits in this State in which recoveries have been sustained for fires alleged to have been set out by locomotives (e. g. Green v. Central Ry. Co., 130 Ga. 375 (60 S. E. 861), and eit.), it will be seen that we are making no exception to any general rule, in holding that nonsuit was improper. “A nonsuit is not granted merely because the court would not allow a verdict for the plaintiff to stand.” It is only when, admitting all the facts proved and all reasonable de■ductions therefrom, the plaintiff has not made out a prima facie ■case that this is the legal result of a trial. Civil Code, §5347.

As the case is to go to trial again, we may add that, under the facts appearing in the proof, the degree of diligence owing by the ■defendant to the plaintiff was ordinary and not extraordinary care. Cf. Southern Ry. Co. v. Rosenheim, 1 Ga. App. 768-9 (58 S. E. 81). Judgment reversed.