Greenway v. Macon, Dublin & Savannah Railroad , 44 Ga. App. 541 ( 1932 )

Luke, J.

Elevan Greenway sued the Macon, Dublin and Savannah Railroad Company for damages on account of the killing of a cow; verdict and judgment were rendered against her, and she , excepts to the overruling of her motion for a new trial. The evidence showed that the cow was grazing on a bank beside the track and suddenly jumped down the bank and went upon the track in front of an approaching train; and that the operators of the train could not have avoided killing her. The fireman testified in part: “The cow came from my side, I was on the left side, which is the fireman’s side. I saw the cow as we approached her, and then she came right on, as we got in about fifty feet of her she took a notion to cross the track and jumped down off of the bank in front of the engine before I had time to do anything or call engineer’s attention to her, and we hit her before I could say anything at all.” J. R. Greenway corroborated the testimony of the fireman by the following testimony: o “ The cow was on the left-hand side- of the track, feeding on the fill, and as the train approached I saw the cow leave the bank, go down off of the bank and on the railroad, and that time the train hit her. By the time the cow went down in the ditch on the side and up on the railroad the train hit her. Before that the cow was feeding alongside of the railroad, and just as soon as she discovered the train behind her she made a dive and right down she went.” This evidence was not contradicted by any competent testimony. In a note embodied in the order overruling the motion for a new trial, the trial judge said: “Upon the trial of this case there was no competent testimony showing that the cow for the killing of which the action was brought was negligently killed by the defendant in the district from which the case was appealed, or that she was so killed in the county of Treutlen. The plaintiff testified that the cow described in the suit was killed, but also testified that she did not see the cow killed or see it after it was killed, and that the only way she knew it was that her cow was missing. No other witness testified that the cow described in the suit was killed. No witness testified that the cow which was killed was killed in the county of Treutlen or in the district in which the suit was brought. In addition to this it did not appear tliat the cow was negligently killed by the defendant; and any presumption of negligence was fully overcome by the testimony of the defendant.”

The evidence demanded a verdict for the defendant company, and the motion for a new trial was properly overruled.

Judgment affirmed.

Broyles, G. J., concurs. Bloodworth, J., absent on account of illness.