Atlantic Coast Line Railroad v. Waycross Electric Light & Power Co.

51 S.E. 621, 123 Ga. 613, 1905 Ga. LEXIS 557

• Court: Supreme Court of Georgia
• Decided: August 2, 1905
• Status: Published

Opinion

Candeek, J.

1. On the trial of an action against a railroad company for dam ages on account of the killing of stock, it. was error for the court, after charging that a presumption of negligence arose against the company upon proof .that the stock was killed by the running and operation of its train, to add: “but that presumption is subject to be'rebutted by evidence introduced by the railroad company showing that everything was done by its agents and servants which could have been done under the circumstances to avoid the killing or the injury.” The effect of this charge was to place upon the railroad company the burden of proving that its employees exercised the highest degree of care known to the law, whereas only ordinary care and diligence was required of them. Western & Atlantic R. Co. v. King, 70 Ga. 261; East Tennessee R. Co. v. Daniel, 91 Ga. 768; Savannah R. Co. v. Wideman, 99 Ga. 245.

2. In such a case, where the stock were not killed at a puííic crossing, it was also error to charge: “If you shall find that the agents and servants of defendant failed to blow the whistle and ring the bell of the locomotive, and shall further find that in such failure ordinary and reasonable care and diligence was not used, and that such failure proximately caused the death of the [stock], then, in,either of these events, you should find for the plaintiff.”

3. While it is permissible for a plaintiff corporation to amend its petition by alleging that since the institution of its suit its corporate name has been changed, and praying that the suit may proceed in its nev? name, it is incumbent upon it, in order to recover under the name as changed, to prove the allegations of its amendment upon the, trial of the case.

Judgment reversed.

All the Justices concur, except Simmons, C. J., absent.