Adgate et al. v. Central of Georgia Railway Company

Fish, J.

The plaintiffs depended for a recovery exclusively upon a presumption of negligence raised by law against the defendant company. This presumption was fully rebutted by uncontradicted evidence, and the evidence as a whole showed that the homicide for which the action was brought resulted either from the failure of the decedent to exercise ordinary care and diligence, or from an accident the nature of which is not clearly disclosed. Under these circumstances, there could be no lawful verdict for the plaintiffs, and the court did not err in directing the jury to find for the defendant. Judgment affirmed.

All the Justices concurring, except

Argued May 9,—

Decided June 7, 1899.

Action for damages. Before Judge Hart. Jasper superior court. September term, 1898.

Burton Smith and J. W. Moore, for plaintiffs.

Hill, Harris & Birch and W. A. Harris, for defendant.

Cobb and Lewis, JJ.,

dissenting. There being, in our opinion, evidence of physical facts and circumstances from which a jury could have inferred that the positive testimony of the defendant’s witnesses tending to show due diligence on its part was not true, the case should have been submitted to and passed upon by a jury.