Smith v. Elberton & Eastern Railroad , 28 Ga. App. 179 ( 1922 )

Stephens, J.

1. Where the servants of a railroad company are operating a “ lever car ” along the railroad track approaching a public crossing, and, upon observing a team approaching the crossing, stop the car in about 12 feet of the crossing and signal to the driver to proceed with the team across the railroad track in front of the car, and after the mules drawing the team have gotten upon the railroad track, where the car is propelled forward in the direction of the mules and within three or four feet of where the mules are crossing the track and thereby frightens the mules, causing them to upset the wagon, to the injury of the driver, there arises an inference that the lever car moved forward and frightened the mules through the negligence of the servants of the railroad company and that such act was the proximate cause of the injury. Permitting the lever car to approach the .mules until apparently about to come in contact with them while upon the track and in the path of the car, authorizes the inference that the servants of the railroad company negligently handled the lever car in such a manner as would naturally tend to frighten the mules. 33 Cyc. 937. The rule here applied is ■ clearly distinguishable from the rulings in Southern Railway Co. v. Flint 2 Ga. App. 162 (58 S. E. 374), and Whistenant v. Southern States Portland Cement Co., 2 Ga. App. 598 (59 S. E. 920).

Decided February 10, 1922.

Action for damages; from city court of Elberton — Judge Grogan. February 16, 1921.

Raymond Stapleton, for plaintiff. W. A. Slaton, for defendant.

2. In a suit by the driver against the railroad company, to recover damages for injuries to him thus sustained, where the above facts appeared from the evidence, it was error to grant a nonsuit.

3. The allegations in the petition setting out a cause of action, the petition was good against general demurrer.

Judgment reversed on the m,ain hill of exceptions; affirmed on the cross-bill of exceptions.

Jenkins. P. J. and, Hill, J., concur.