Alabama Great Southern Railroad v. Capeley

146 S.E. 326, 39 Ga. App. 98, 1929 Ga. App. LEXIS 198

• Court: Court of Appeals of Georgia
• Decided: January 15, 1929
• Docket: 19136
• Status: Published

Opinion

Luke, J.

The plaintiffs in the court below obtained verdict and judgment against the railroad company for the alleged negligent-killing of a dog. The defendant assigns error on the overruling of its motion for a new trial which, was based on the general grounds and on a special ground attacking an excerpt from the charge of the court.

1. The court did not err in charging the jury that the plaintiffs “are entitled to recover upon showing that the injury was occasioned by the killing of the dog described in the petition, and by the negligence described therein.” This instruction, when considered in connection with the instruction of the court which immediately preceded it, was entirely fair to the defendant company.

2. The evidence shows that the dog ran on the defendant company’s track on a curve, on the fireman’s side, and about a hundred feet in front of the train which was carrying sixty cars and running thirty miles au hour on a little down grade; that as soon as the fireman saw the dog he “hollered to the engineer;” that the engineer' was looking ahead and saw the dog as soon as he could have seen it; that he did not see the dog until he was within fifty feet of it and going at the rate and with the load named above; that the engineer “opened up his cylinder cock and reached up for the whistle cord, but before he could blow the whistle the engine had run over and killed the dog.” This evidence is uncontradicted, and it shows that it was psysically impossible to avoid killing the dog. “By two witnesses who knew the facts with absolute certainty, the presumption of negligence was fully overcome; and apart from the presumption, there was no proof whatever of negligence. Consequently, the verdict was without evidence to support it,” and the court erred in overruling the motion for a new trial. Savannah, Florida & Western Ry. Co. v. McConnell, 94 Ga. 352 (21 S. E. 568); Macon & Birmingham R. Co. v. Revis, 119 Ga. 332 (46 S. E. 418); South Carolina & Georgia R. Co. v. Powell, 108 Ga. 437 (33 S. E. 994); Georgia Southern & Florida Ry. Co. v. Thompson, 111 Ga. 731 (36 S. E. 945); Western & Atlantic R. Co. v. Beason, 112 Ga. 553 (1), 556 (37 S. E. 863); Central of Georgia Ry. Co. v. O’Neal, 11 Ga. App. 461 (75 S. E. 674).

Judgment reversed.

Broyles, G. J., and Bloodworth, J., concur.