Georgia Railroad & Banking Co. v. Peterson , 91 Ga. 74 ( 1893 )

Peterson sued the railroad company for damages from tbe killing of bis cow. He obtained a verdict for $25, interest and costs. By certiorari tbe defendant alleged that tbe verdict was contrary to evidence, without evidence to support it, excessive, and contrary to law and tbe principles of justice and equity; that the presumption of liability raised by law against it, by showing that tbe injury to tbe cow was caused by its engine and cars, was fully overcome by tbe undisputed testimony that its agents exercised all ordinary and reasonable care and diligence to prevent tbe accident, and that tbe accident was unavoidable. Further, that tbe verdict was illegal, in that it found plaintiff to be entitled to interest as interest. The judge of the superior court overruled tbe certioi ari upon tbe plaintiff writing off tbe interest, and ordered tbe defendant to pay tbe costs, to which ruling it excepted.

Upon tbe trial in tbe magistrate’s court plaintiff testified : About December 27, 1888, be bad a cow killed on tbe Macon branch of defendant’s road. When be found her she was at tbe end of a cut with her head lying towards Macon, was bruised on tbe hip and her bind legs were broken. She was worth about $75; was of great help to him in supporting his family frona tbe quantity of milk she gave. He signed a paper, and it was his idea when be signed it that be would get tbe value of bis cow; but be has never received any money from defendant for killing her.

For defendant tbe engineer in charge of tbe engine at the time in question testified: It was my train which, killed the cow. The train was going from Camak to Macon. The cow was killed in a narrow cut, the track in which is on a curve. My engine was in fifty steps of her when I came in sight of her. The cut and curve prevented my being able see her any earlier. There were other cows there which went out of the cut in the direction of Macon, but the cow killed was coming towards my engine, trying to get out of the cut in the direction of Camak, and meeting my engine when I saw her. 'When I saw her it was at too short a distance to stop my train, running its regular schedule at the time. There were no means available and nothing that could have been done to stop the train before striking her, after I first came in sight of her. It was just impossible to stop the train in that distance. I blew on brakes, reversed the engine and sanded the track, but hit her before the speed of the train slacked. — Defendant’s section master testified that he in company with plaintiff appraised the cow at $15, which amount witness thought had been paid. It was admitted that if one Ford had been in court he would swear that where the cow was killed was on a straight line of the road, that he saw the cow killed, and that there was no effort made to slow up the train.

J. B. Cumming, Bryan Cumming and M. P. Reese, for plaintiff in error. J. T. Jordan, by Harrison & Peeples, contra.