Southern Railway Co. v. McMillan

Little, J. The official report states the facts. There is no evidence in the record that the cow of the plaintiff was killed by the running of the locomotives or cars or other machinery of the defendant company. On the contrary, it does appear in the record that the cow Was found lying in the ditch beside the track in a cut, on each side of which was a high embankment. It appears from the testimony of one of the witnesses that there were signs on the side of the cut showing that the cow had fallen down the embankment, and the evidence further showed that there were no external marks of violence on the body of the animal, and no signs on the railroad-track or on the cross-ties, which would indicate that she had been struck by an engine or any part of a train of cars. One [119] of the witnesses thought, from the condition of the cow when found, that her back was broken. It was incumbent on the plaintiff to satisfactorily prove that the cow was injured as alleged. The law does not raise any presumption that a particular injury was inflicted by the running of the locomotives or cars of a railroad. It is only when the injury is satisfactorily shown, that the presumption of law arises that such injury occurred by the fault or negligence of the agents of the company ; and when the injury is traced to the company, the burden rests on it to make it appear that it exercised all ordinary and reasonable care and diligence in the management and operation of the locomotive and cars which occasioned the injury. Ga. R. R. v. Bird, 76 Ga. 13. It of course is not necessary to show that the injury was inflicted by the running of the locomotive or cars, by positive proof. Such injury may be proven to' have been inflicted by the circumstances, as well as by positive proof, but the circumstances must be such as will afford a reasonable inference that the injury was so inflicted. In the present case there was no positive evidence that the injury to the animal was inflicted by the railroad company, nor proof of such a state of facts or circumstances as would support a reasonable inference that the injury was thus inflicted. On the contrary, the facts and circumstances proven go to show that most probably the injury sustained by the cow was in consequence of her falling from the top of the high embankment. Signs and marks on the embankment indicate that such is the truth of the matter; indeed, it seems not to have been controverted. The total absence of any external wounds on the body of the animal, or of any indicia on the track or cross-ties, coupled with the facts as they appear in evidence, lead to the conclusion that the injuries were not inflicted by the operation of the defendant’s trains. Hence, the original verdict rendered in the justice’s court in favor of the plaintiff was without evidence to support it; and it was therefore error in the trial judge to dismiss the certiorari. Judgment reversed. All the Justices concurring.