Central of Georgia Railway Co. v. Bagley , 121 Ga. 781 ( 1905 )

Cobb, J.

1. It is well settled that allegations that the plaintiff “is owner of” the property involved, or that it “belongs” to him, or he is “ seized,” and the like, are allegations of an ultimate fact, and not of a mere conclusion of law. See 21 Enc. P. & P. 718, and cit. The demurrer seems to concede this, and avers that an allegation that the animals were “ the property of petitioners ” does not sufficiently show the character of ownership. The necessary inference to be drawn from this averment is joint ownership in each of the animals referred to in the'petition. It is certainly not to be inferred that one of the plaintiffs owned one animal and the other two.

2. The allegations of negligence in the petition were sufficient. The plaintiffs relied on certain omissions of duty which they claimed constituted negligence. These omissions were subject to explanation by the defendant. It could show that, relatively to the plaintiffs’ property, the omission did not constitute negligence, because the animals could not have been seen earlier, and that after they were seen the engineer did not have time to stop the train before striking the animals. These were, however, matters of defense, and need not have been alleged in the petition.

3. It is complained in the motion for a new trial that the court refused to allow the engineer to answer the following question :“ Now then, was it possible for you to do anything else besides what you did to prevent the injury?” The court allowed the Witness to testify that after seeing the animals he did everything in his power to stop the train. In two other grounds of the motion complaint is made of the court’s refusal to allow similar questions to be answered by the engineer. We think the court went quite far enough in allowing the witness to testify that he did everything in his power to stop the train. The evidence sought was a conclusion of the witness, resting largely upon his mere opinion. This kind of evidence is usually inadmissible. In a case like the present it is better for the engineer to state what he did, and leave to the jury the determination of the question whether, in doing the things detailed, he did everything to prevent the injury which he ought to have done. The engineer not only could but did actually state what he did. See Mayor of Milledgeville v. Wood, 114 Ga. 370 (2); So. Mut. Ins. Co. v. Hudson, 115 Ga. 639 (2).

4. It is also complained that the court, after charging the jury that the fact that witnesses were employees of the,defendant was no reason for disbelieving their testimony, added, “ except in determining what weight and credit you will give to the testimony of the witnesses.” The court stated the rule with absolute correctness. The fact that a witness is an employee of a party to a case is a matter bearing upon the interest of the witness, which the jury may consider in passifig upon his credibility; and it was not error to instruct the jury to this effect.

5. Error was assigned upon the following charge: “Now I charge you, gentlemen, that when stock has been shown to have been killed by the locomotive, cars, or other machinery, that the law presumes negligence on the part of the railroad, that that makes out a prima facie case for the plaintiff; that is, nothing else appearing, the plaintiff would be entitled to recover. I charge you that the defendánt may come in and overcome that presumption. That, like all presumption, is a matter that can be overcome by proof. I charge you, that presumption may be overcome by showing that the defendant used all ordinary diligence and care to prevent the accident, to prevent the killing.” The objection to this charge was that it should have been qualified “ so as to apply only to the peculiar facts of negligence alleged in the petition.” The argument upon this assignment of error was, that, as the plaintiffs could not recover except upon the negligence alleged, the qourt should have qualified the charge by saying that the presumption simply went to this extent. It is now settled that the presumption arising upon proof of the injury establishes, only the negligence alleged, and if it is shown by uncontradicted evidence that there was no negligence as alleged, the presumption is overcome, and the plaintiff is not entitled to recover, although the proof may show other acts of negligence. Central of Georgia Ry. Co. v. Weathers, 120 Ga. 475. The portion of the charge complained of is absolutely correct in every particular. It simply says that, upon proof of the injury alleged, there is a presumption of negligence, and that, nothing else áppearing, the plaintiff would be entitled to recover; but that this presumption may be overcome by proof showing that the defendant exercised all ordinary and reasonable care and diligence. These are simply the general principles of law applicable to such a case; and giving them without qualification was not of itself error. As to the propositions of law contained in the charge, they require no qualification

to make them sound, and the assignment of error is subject to the criticism that complaint is made of a correct instruction because some other sound proposition wás not given in the same connection. See Atlantic Coast Line R. Co. v. Williams, 120 Ga. 1042. It was further complained that the judge erred in stating, the contentions of the parties; this assignment of error being an effort to raise the same question as was sought to be raised by that which has just been considered. The judge in a general way stated the contentions of both parties; and if a more elaborate-statement of the contentions had been desired, an appropriate written request should have been made in due time. The charge was not as full as it might have been, but it contained the general principles of law applicable to the case, and if amplification had been desired, appropriate requests should have been made. See, in this connection, Smith v. Mfg. Co., 112 Ga. 680 (2).

The evidence was conflicting, but there was evidence from which the jury could find that the presumption against the company had not been rebutted; and the discretion of the trial judge in refusing to grant a new trial will not be interfered with.

Judgment affirmed.

All the Justices concur.