Citation Numbers: 56 Ga. 457
Judges: Jackson
Filed Date: 1/15/1876
Status: Precedential
Modified Date: 1/12/2023
This was an appeal from the justice’s court to the superior court of the county of Jones, on the question of the liability of the railroad company for killiüg a cow belonging to the plaintiff.
It appears from the record that the plaintiff had four or five hundred acres of land enclosed by fence, lying on both sides of the railroad; that where the fence crossed the road cattle gaps were constructed; that this land was used as a pasture at the time the cow was killed, and that she was killed within the enclosed pasture. It also appeared that some bushes were left standing within the right of way of the company, contrary to a regulation thereof, and it was attempted to be proved that the engineer failed to see the cow on account of the bushes. It was also in evidence that a public crossing
The jury, under the charge of the court, found for the defendant, the engineer having sworn that he could not see the cow; that he was using all diligence; that the killing was unavoidable; that he could not have seen her on account of the fense, even if the bushes had been out of the way.
The plaintiff moved for a new trial on the ground that the court erred in refusing to charge that “the failure to keep the right of way clear of bushes is negligence on the part of said road and its employees, and you should find for the plaintiff, if the cow was killed by the failure to see her on account of the bushes;” and on the further ground that the verdict was against the law and the evidence. The court refused the new trial, and this is the error assigned.
We think that the court properly refused the request. It' would have made the court say to the jury what was negligence, and would have commanded the jury, thereupon, to find for the plaintiff. The question of negligence is for the jury, exclusively for the jury; had this charge been given, it would have been taken from them and been controlled exclusively by the court. This court has often held that this question of negligence is for the jury alone. It is enough to refer to the case of Wright vs. the Georgia Railroad and Banking Company, where the fact proven was that an axle of the car was too short. It was held incompetent for the court to tell the jury, even that that fact constituted such negligence as to require a verdict for the plaintiff: 34 Georgia Reports, 330. It would have been improper, therefore, to give this request as written.
The charge of the court, as excepted to, submits the question of negligence to the jury, telling them that the burden is on the railroad company to show its absence and to show that the accident was unavoidable. Even if the cow had not
In respect to the complaint about the application of the case of the Macon and Augusta Railroad Company vs. Vaughn, 48 Georgia Reports, 464, to this case, we remark that it does not appear that the motion for a new trial was based thereon; but if it had been, with proper qualifications, we think the law there decided is applicable to this case. It is true that in that case there was no evidence at all of negligence; in this there is some; but in both cases .the animal was killed in a pasture enclosed on both sides of the railroad; and as we have presumed that the court charged correctly when the contrary does not appear, and as the jury have found no negligence on the part of the company in this case, the two cases, with that finding, are exactly alike. We must, therefore, affirm the judgment.
Judgment affirmed.