Griswold v. Macon Railway & Light Co.

63 S.E. 1132, 6 Ga. App. 1, 1909 Ga. App. LEXIS 155

• Court: Court of Appeals of Georgia
• Decided: March 23, 1909
• Docket: 1574
• Status: Published

Opinion

Powell, J.

The first exception of law is that the court charged the jury that it is necessary, in order for the plaintiff to recover, that it should appear from a preponderance of the evidence in the case that the plaintiff was entitled to a verdict. The court fairly and fully instructed the jury as to the presumption arising against the company upon proof that the plaintiff was injured while a passenger or by the operation of the cars. The plaintiff in error cites the case of Killian v. Georgia R. Co., 97 Ga. 730 (25 S. E. 384). In that case it was held error for the court to charge the jury that the preponderance of the evidence must be with the plaintiff, in order to justify a recovery, without also instructing them as to the presumption arising against the defendant when it appears that the injury was caused by the running of the cars. In a suit against a railway company, as well as in any other suit, in an ultimate sense the burden of proof is usually upon the plaintiff; but upon proving the fact that the injury was received by the running of the cars, the plaintiff makes prima facie proof also that the injury was occasioned through the negligence of the defendant, and therefore carries successfully the burden resting prima facie upon him. Therefore it is proper, in such a case, for the judge to give in charge to the jury the rule-which places the burden of proof upon the plaintiff; also instructing the jury as to the burden resting on the defendant after proof that the injury was received by the running of the cars of the defendant, as was done in the present case, and as the Supreme Court said should have been done in the Killian case. The case just cited, instead of being an authority for the contention of the plaintiff in error, is authority to the contrary.

2. The next ground of the motion for a new trial presents the objection that the judge, in stating several rules of law applicable to the case, began his instructions with the statement that “if the jury should find, from the evidence, that the plaintiff was a passenger,” etc.; the ground of objection being that the evidence showed no dispute on the question as to whether the plaintiff was a passenger. Looking at the excerpt in connection with the charge as a whole, we find no harm or prejudice to the plaintiff from this form of instruction. The remaining exceptions relate to alleged inaccuracies in the charge of the court, as to certain features of the damages which the plaintiff claimed she would be entitled to in tbe event of a recovery. Without inquiring into the merit of these questions, we may say that they present no reversible error, since they were rendered harmless by the fact that the jury found that the plaintiff was not entitled to recover at all. The trial being free from material error, and the verdict being supported by the evidence, the judgment is Affirmed.