Georgia Court of Appeals, 1908

Ellenberg v. Southern Railway Co.

Georgia Court of Appeals · Decided December 23, 1908 · Powell

5 Ga. App. 389; 63 S.E. 240; 1908 Ga. App. LEXIS 133

Cases that cite this one

21 later published cases cite this decision.

State Ex Rel. Hale v. Marion County Municipal Court (Ind. 1955)
Christina J. Epps v. State of Indiana (Ind. Ct. App. 2013)
Quigg Trucking v. Nagy (Ind. Ct. App. 2002)
Community Education Center, Inc. v. Cohen (Ga. Ct. App. 1979)
Ray v. State (Ind. 1969)
Richardson v. Potter (Ga. Ct. App. 1964)
Service Casualty Co. v. Carr (Ga. Ct. App. 1960)
Sanders v. Ryan (Ind. Ct. App. 1942)
Walker v. Central of Georgia Railway Co. (Ga. Ct. App. 1933)
Georgia Railway & Power Co. v. Shaw (Ga. Ct. App. 1929)
Chicago, Terre Haute & Southeastern Railway Co. v. Collins (Ind. Ct. App. 1924)
Wilson v. State (Ga. Ct. App. 1924)
Ocilla Southern Railroad v. McInvale (Ga. Ct. App. 1920)
Moore v. Dixie Eire Insurance (Ga. Ct. App. 1917)
Georgia Southern & Florida Railway Co. v. Thornton (Ga. 1915)
Eubanks v. Central of Georgia Railway Co. (Ga. Ct. App. 1913)
Ellenberg v. Southern Railway Co. (Ga. Ct. App. 1910)
Cooke Trust Co. v. Edwards (Haw. 1959)
Western & Atlantic Railroad v. Henderson (Supreme Court of the United States 1929)
Cone v. American Surety Co. (Ga. Ct. App. 1923)
Atlantic Coast Line R. v. Blalock (Ga. Ct. App. 1910)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

Powell, J.

(After stating the foregoing facts.)

1. When the plaintiff proved that her husband was killed by the train, the burden did not thereafter rest on her to show how the fatality came about. The law immediately raised the presumption that the defendant was negligent in every detail mentioned ip .the petition, and the onus was on the company to disprove each and every efficient and proximate act of negligence stated in the petition, or to show'some affirmative defense sufficient to defeat the ease. Bryson v. So. Ry. Co., 3 Ga. App. 407 (59 S. E. 1124). This disproof may come from the plaintiff’s own witnesses, and may thus entitle the defendant to a nonsuit. The disproof must gb not merely to one of the proximate efficient negligent acts alleged, but to all of them. We are not prepared to say that the testimony in the present case was such as absolutely to disprove the allegation that the signal was not given; but, for the sake of argument, say that it was; the company did not show the untruthfulness of the allegations that the headlight was defective, that the track was¡ straight, and that, even though the headlight was defective, the; deceased could have been seen several hundred yards, and that, despite these facts, the engineer caused the train recklessly to rush on and run over him. There was no sufficient proof of the defendant’s contributory negligence. Hence nonsuit was error.

2. The trial judge may have put his decision on the ground that the deceased was a trespasser, and not a licensee. If so, he certainly should have allowed the plaintiff to show that at the time her husband was killed he was wálking in a well-marked pathway generally used by the public. The jury could have inferred notice to the company from the fact that the pathway was marked out between its tracks, and from its long and frequent use. While a trial judge has some discretion in refusing a request to reopen *392the case to supply testimony adequate to avoid a nonsuit, yet this 'discretion should be liberally exercised in behalf of allowing the whole case to be presented. It is the usual course to allow the additional evidence; and, whenever the trial judge refuses to allow it, some good reason should appear for such exercise of his discretion. The trial of a ease is not a mere game for testing the skill and vigilance of contesting lawyers, but is an investigátion instituted for the purpose of ascertaining the truth. Civil Code, §5142. Judgment reversed.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.