Law v. Hulsey., 109 Ga. App. 379, 136 S.E.2d 161 (1964)
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Stowe & Andrews, Robert E. Andrews, contra.C. Winfred Smith, for plaintiff in error.
In this action brought under Code 62-1604 for property damage due to the negligence of the owner of a bull in permitting it to run at large on a public highway, where the plaintiff made out a prima facie case by proving the bull's presence on the highway and the injury to the plaintiff's truck from a collision with the bull, the defendant's evidence explaining his and his agent's conduct in the care of the bull did not demand the finding that the defendant was not negligent, although it prevented a verdict for the plaintiff based on the prima facie case alone. Under the entire evidence the jury was authorized to find for the plaintiff.
Jewell Hulsey sued G. H. Law to recover property damage allegedly due to the negligence of the defendant in permitting his bull to run at large and stray on U. S. Highway 129, a public highway in the State of Georgia, as the proximate result of which the plaintiff's truck was damaged by a collision with the bull. The jury found for the plaintiff. The defendant excepts to the overruling of his motion for a new trial as amended.
The only question in this case is whether a verdict was demanded for the defendant since it is never error to refuse to direct a verdict unless the exception is to the overruling of a judgment n.o.v. Even if a refusal to direct a verdict could be the ground of exception such an exception cannot be the ground of a motion for a new trial. The real heart of the plaintiff in error's contention is that where the plaintiff makes out a prima facie case by proving that his property was injured by the bull's being on the highway and the resulting injuries, and the defendant introduces evidence from which the jury could infer that the defendant was not negligent, the plaintiff must introduce additional evidence of the negligence of the defendant in order to carry his original and continuing burden of proving the defendant's negligence. It is true that where a prima facie case is made in such a case and a defendant introduces evidence from which a jury could absolve the defendant from negligence and liability the plaintiff cannot recover on the permissible inference or presumption by which he gets his case to the jury. The question of the plaintiff's right to recover depends on the evidence in the case and not on the prima facie proof made by the plaintiff. See Porier v. Spivey,
Judgment affirmed. Frankum and Pannell, JJ., concur.
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