Opinion
32930.
DECIDED FEBRUARY 17, 1950.
Damages; from Atkinson Superior Court — Judge E. R. Smith. December 7, 1949.
H. J. Quincey, Bennett, Pedrick Bennett, for plaintiff in error.
L. A. Hargreaves, contra.
1. The prima facie presumption of want of reasonable skill and care on the part of the servants of railroad companies which arises upon proof of injury inflicted by the running of their locomotives or cars disappears upon the introduction of some evidence showing absence of such negligence. The burden of proof then shifts to the plaintiff to show such negligence as will authorize recovery. See Code § 94-1108; Jones v. Powell, 71 Ga. App. 202 ( 30 S.E.2d 446).
2. Where, as here, the conduct alleged to be negligent, upon which the plaintiff relies for recovery is such that the sole conclusion to be reached is that the same does not amount to negligence, then the court must hold as a matter of law that the defendant was not negligent, and the plaintiff can not recover. Georgia Power Co. v. Blum, 80 Ga. App. 618 ( 56 S.E.2d, 18); Lester v. Foster, 40 Ga. App. 500 ( 150 S.E. 433); Macon Telegraph Publishing Co. v. Garden, 79 Ga. App. 230 (1-d) ( 53 S.E.2d 371).
3. Applying the foregoing rules of evidence to the within case, where, the action is for damages on account of killing a cow by a railroad train, and it appearing from the uncontradicted evidence that the cow was standing a safe distance off the track and giving no indication of approaching the track until the train was so close that it was impossible to avoid the injury, and that it then attempted to cross the track in front of the train, the evidence demanded a verdict for the railroad company. Greenway v. Macon, Dublin Savannah R. Co., 44 Ga. App. 541 ( 162 S.E. 168).
The trial court erred in overruling the motion for a new trial.
Judgment reversed. MacIntyre, P.J., and Gardner, J., concur.
DECIDED FEBRUARY 17, 1950.
This was an action brought by the owner of a cow against the defendant railroad company wherein it was alleged that the cow was killed by the negligent operation of a train of the defendant. The uncontradicted evidence was substantially as follows: that the train was going north approaching the station of Axson in Atkinson County; that the engineer was planning to stop the train at the station and when approximately 200 feet away from the cow was ringing the bell and had applied the brakes; the train then traveling at approximately 30 miles per hour; that the cow was then seen by the engineer and fireman standing to the left of the track and a safe distance therefrom headed north but giving no indication of its intention to come upon the track; that when the engine reached a point very near the cow it turned and started across the track in front of the train; that at this time it was physically impossible to do anything to prevent striking the cow; that the engineer sounded the alarm whistle, but the cow was struck by the train and killed.
On this evidence the jury returned a verdict in favor of the plaintiff. The defendant filed a motion for a new trial on the general grounds only and the exception here is to the overruling of this motion.