
    15164.
    Central of Georgia Railway Co. v. Cox.
    Decided April 16, 1924.
    Certiorari; from Effingham superior court — Judge Strange. October 16, 1923,
   Bloodworth, J.

The presumption that the defendant railroad company was negligent, which arose from proof of damage to the plaintiff’s property by the running of the defendant’s train, was satisfactorily met; it being shown that the defendant exercised all reasonable care and caution to prevent the damage. The verdict against the company was, therefore, contrary to the evidence, and the court erred in overruling the certiorari.

Judgment reversed.

Broyles, O. J., and Lithe, J., oonour.

The suit was for injuries to the plaintiff’s Holstein heifer. The only witness in his behalf as to the striking of the heifer by the defendant’s train testified that the train killed a cow belonging to another person, and that the Holstein heifer belonging to the plaintiff was struck and walked off; that the point where the train struck her was about 300 yards below the depot at Guyton and about 20 yards below the public-road crossing when the train was slowing down to stop at Guyton; that this cow looked to him as if she -were on the track, but he was off to one side, on a veranda, and a sidetrack was between him and the main track on which the train was running, and the cow might have been on the side-track when the train was approaching; that the railroad curves at the point where she was struck, and that he could not say whether the bell on the engine was rung and the whistle blown. The fireman of the locomotive testified: “I was on the box looking ahead. I started to ring the bell for the public-road crossing that is about 300 yards below the station at Guyton, when about 150 yards below it. I was ringing the bell when the cow was struck. When I started to ring for the road crossing I kept ringing until we passed the crossing. The cow that was killed was off from the track and started to the track just in time to get on it and get knocked off. Mr. Callahan (the engineer) had applied the brakes to slow down for the stop at Guyton. He was blowing the whistle for the public-road crossing. He started to blow before the cow that was killed started towards the track. He was blowing the public-road-crossing whistle when the cow was struck. I never saw the Holstein cow that they say was hit at the same time. The track curves there where the cow was killed. We did all we could to prevent the killing of the cow.” The engineer testified: “As the train was slowing down for the depot at Guyton some cows were near the track . . a few yards below the public-road crossing, I was blowing the public-road-crossing whistle when the cow that was killed started toward the track. This was not a Holstein cow, but a brown cow. When I saw the ’ cow start towards the track I applied the emergency brakes. I could not kick open the cylinder-cocks, as I had the brakes applied and had done shut off for the stop at Guyton, I was up on the box looking ahead before we reached the post that is the signal for us to blow for the road crossing. The fireman was on the box and ringing the bell for the road crossing. He started to ringing about 150 or 200 yards below the crossing. The cow was struck about 15 or 20 yards below the crossing. We did all that we could have done to prevent the killing of the cow, and I never saw the Holstein cow that is said to have been injured. It was impossible to prevent it. . . , The road is on a curve. The post that is a signal for us to blow for the public-road crossing is about 150 or 200 yards below the crossing. I was blowing for the public-road crossing the signal that the law requires and the rules of the road. I do think that it is more important to blow for the crossing the signal required than to blow the shorter blows that are usually used to frighten cows from the track, because a human life may be involved. I was doing what the State law requires and the rules of the road require. We did all that we could do to prevent killing the cow. I never did see the Holstein cow said to have-been injured. I could have seen her if she had been on the track. It is true that sometimes cows run against the side of the engine and are knocked down. This Holstein cow could have been hurt in this way.”

C. T. Guyton, for plaintiff in error,

cited: 99 Ga. 245; 82 Ga. 190; 3 Ga. App. 197.

H. P. Cobb, contra.  