Powell v. Deloach , 74 Ga. App. 397 ( 1946 )

The overruling of the motion for a new trial, embracing the general grounds only, was not error.

DECIDED OCTOBER 17, 1946. L. V. DeLoach sued L. R. Powell Jr. and Henry W. Anderson, as receivers of Seaboard Air Line Railway, for the recovery of damages from the alleged negligent killing and maiming by said railway of cattle owned by the plaintiff. Upon the trial the jury returned a verdict in favor of the plaintiff for $90. The defendants' motion for a new trial, based upon the general grounds only, was denied, and that judgment is assigned as error.

It is conceded by counsel for both parties that the only question presented to this court is whether the verdict was authorized by any competent evidence. The evidence adduced authorized the jury to find the following facts: One of the plaintiff's cows was killed, and another was injured, by being struck by an engine of a train of said railway, while the train was being operated in the City of Claxton, Georgia, at a speed of 15 miles an hour. It was unlawful for any railway train to be operated in said city at a speed in excess of 12 miles an hour. The jury were also authorized to find that the engineer of the train in question was guilty of negligence in operating the train at such an unlawful speed in said city, and, under all of the facts, that this negligence was the proximate cause of the killing and injury sued for. It follows that the verdict in favor of the plaintiff (the amount not being questioned) was authorized by the evidence.

The question of the constitutionality of the ordinance of the City of Claxton, prohibiting the operation of trains within its limits at a speed in excess of 12 miles an hour, is not presented in this case.

Judgment affirmed. MacIntyre and Gardner, JJ., concur.