Jones v. Powell , 71 Ga. App. 202 ( 1944 )

There was a directed verdict in this case and no question arises as to the propriety of charging the Code, § 94-1108; but whether the principle is applicable is material in the case. In my judgment the prima facie presumption of negligence does not vanish as a matter of law until the railroad has produced all the evidence in its power to produce which will authorize a finding that it exercised ordinary care and diligence, or at least enough evidence to authorize such a finding. In this case the railroad had the burden of producing evidence showing ordinary care. The evidence produced, if taken at face value, did not necessarily show it. The testimony for the railroad did not show whether the fireman went over and told the engineer about the mule immediately, or whether he waited a half minute, more or less. I cannot agree with the statement in the majority opinion that "the fireman's testimony must be taken to indicate that he reported to the engineer the presence of the muleimmediately upon his discovery of it, in the absence of anything to the contrary." There is no evidence to authorize such a holding. All the fireman said about this was that he could see the mule just a little quicker than the engineer, and that about the time he told the engineer about the mule the engineer saw it. Even if the presumption had vanished it was for the jury to say whether under the evidence the railroad exercised ordinary care in view of the fireman's bad judgment on the question of distances. If he misjudged the length of a box car by approximately three-fourths of its length, he might have misjudged the distance the train was from the mule when he first saw it. It seems that our present presumption statute was copied from Mississippi's. In the case of Gulf, M. N. R. Co. v. Brown, 138 Miss. 68 (102 So. 855), the court stated: "The statute was intended to have operation only when the facts were not or could not be produced and places the burden upon the company to produce the facts which are generally peculiarly within its own knowledge." As stated, the burden of producing the facts sufficient to preclude the application of the presumption was on the railroad. When it failed or refused to do so by not asking the fireman whether he notified the engineer immediately, such failure did not make it incumbent on the plaintiff to supply the omission by cross-examination, as held by the majority.