Seaboard Air-Line Railway v. Moore , 1917 Ga. App. LEXIS 694 ( 1917 )

George, J.

The railway company was sued for the negligent killing of three mules, which were run over by a passenger-train. The negligence alleged was: (1) the failure of the engineer and emploj^ees of the defendant company to keep a proper lookout; (2) the failure to exercise ordinary care and diligence to bring the train to a stop after the mules were discovered on the track; (3) the failure to blow the whistle and ring the bell; (4) the failure to check the speed of the train; and (5) the running of the train at a high and reckless rate of speed. The undisputed evidence in the case showed that the plaintiff’s mules were killed by the running of the locomotive and cars of the defendant company. The presumption of negligence thus raised was. not so clearly rebutted as to authorize this court to say that the finding of the jury against the railroad company, upon its defense that its agents and servants had exercised all ordinary and reasonable care and diligence, was without evidence to support it. The facts and circumstances in the record, when aided by the presumption of negligence against the company, were sufficient to authorize the jury to find that the defendant was negligent in failing to keep a proper lookout, and in failing to discover the presence of the mules on its track in time to have avoided injury to them, although the evidence in behalf of the defendant showed that it exercised all reasonable care and diligence in order to avoid injury to plaintiffs’ mules after they were seen by the employees of the company. The court did not err in overruling the motion for a new trial, made upon the general grounds only. Georgia Railroad & Banking Co. v. Churchill, 113 Ga. 12 (38 S. E. 336); Southern Railway Co. v. Carter, 139 Ga. 236 (77 S. E. 21).

Judgment affirmed.

Wade, C. J., and Luke, J.; concur.