Georgia Coast & Piedmont Railroad v. Smith , 22 Ga. App. 332 ( 1918 )

Harwell, J.

(After stating the foregoing facts.) Where stock is killed by the running of the cars of a railroad company,- and there is some evidence other than the presumption' against the company, authorizing the jury to find that the employees in charge of the train were negligent and that the killing was the result of that negligence, a verdict against the railroad company should not be disturbed. Negligence, like any other fact, may be " established by circumstantial evidence as well as by direct evidence. In Southern Railway Co. V. Carter, 139 Ga. 237 (77 S. E. 21), Mr. Justice Beck said: “In passing upon the question as to whether or not the presumption of negligence- which arose upon proof of the killing of the stock in the operation of the defendant’s train had been overcome, the jury had the right to consider all the circumstances proved in the case, as well as the direct testi-' mony given by the witnesses for the plaintiff and the defendant. Whether the killing of the stock was the result of a failure to exercise due care and diligence or not was one for the jury; and there being some evidence to support their finding contrary to the contention of the defendant, this court should not disturb it on the ground that the verdict is contrary to the evidence.” In Central of Ga. Ry. Co. v. Dozier, 117 Ga. 793 (45 S. E. 67), it was said: “In a suit for damages for killing stock the plaintiff offered no eye-witness to the transaction. While weak and unsatisfactory, the testimony as to the tracks of the animal and other physical facts was sufficient, when aided by the presumption of negligence, to warrant a verdict in favor of the plaintiff, notwithstanding the evidence of the engineer and fireman tended to show the exercise of ordinary care and diligence.” See also Central of Ga. Ry. Co. v. Harden, 113 Ga. 455 (38 S. E. 949), s.c 114 Ga. 548 (40 S. E. 738). In the Harden ease a mule was killed, and the employees in charge of the train testified that they did all that they could to prevent the killing. There was, however, some evidence of tracks showing that the mule had run down the railroad, and the Supreme Court finally upheld the verdict against the railroad company, the court stating that there was some evidence to sustain the jury’s finding. Compare also the following cases: Southern Ry. Co. v. Lang, 11 Ga. App. 8 (74 S. E. 443); Atlantic Coast Line R. Co. v. Strickland, 125 Ga. 352 (54 S. E. 168); Southern Ry. Co. v. Patton, 10 Ga. App. 678 (73 S. E. 1075); Ga. So. & Fla. Ry. Co. v. Tyson, 11 Ga. App. 233 (74 S. E. 1098); Atlantic Coast Line Railroad Co. v. Chastain, 15 Ga. App. 707 (84 S. E. 167); Central of Ga. Ry. Co. v. Trammell, 114 Ga. 312 (4) (40 S. E. 259). “It was for the jury to determine whether the explanation offered in behalf of the defendant completely rebutted the- presumption of negligence created by the killing . . ; and they might legitimately have concluded that the explanation of the killing was insufficient; the credibility of the witnesses as well as the question of negligence being exclusively for them.” Atlantic Coast Line Railroad Co. v. Chastain, supra.

In the instant ease the plaintiff’s right to recover did not rest solely upon the statutory presumption of negligence, but there was direct evidence as well as circumstantial, as shown by the record, which., in our opinion, authorized the finding of the jury that the employees in charge of the train were negligent, and that the killing could have been prevented by the use of proper diligence, notwithstanding the testimony of the engineer and the fireman that they did all they could to prevent it. The evidence was sufficient to authorize the verdict, which was approved by the trial judge, and, no error of law appearing, this court will not interfere. The head-notes dealing with, the special grounds of the motion need no elaboration, v

Judgment affirmed.

Bloodworth, J., concurs.