
    4182.
    Central of Georgia Railway Co. v. O’Neal.
    Decided September 17, 1912.
    Certiorari; from Pike superior court — Judge R. T. Daniel. April 4, 1912.
   Hill, C. J.

The statutory presumption of negligence, arising on proof of the killing by the running of the locomotive and cars of the railroad company, was fully rebutted by positive and uncontradicted evidence, and the verdict for the plaintiff was contrary to law. The judge of the superior court erred in overruling the certiorari. Macon & Birmingham R. Co. v. Revis, 119 Ga. 332; Macon, Dublin & Savannah R. Co. v. Wood, 3 Ga. App. 197. Judgment reversed.

The railway company was sued in a justice’s court for damages on account of the killing of a cow by a locomotive. A verdict was rendered against the company, and in its petition for certiorari, the overruling of which is assigned as error, it is alleged that the verdict was contrary to law and without evidence to support it. The only eye-witness of the killing and the only person who testified as to the manner in which the locomotive was running was the engineer. He testified: “I was engineer on train that struck lilaintifE’s cow. . . I was pulling heavy freight-train, with very large engine, and was going down grade — pretty heavy grade. The point where the cow was hit was on a curve in the track— curve to my left. I was on the right side of the engine and was looking out all the while. It was impossible to see very far ahead at that point. The front of the engine obscured or obstructed so I wouldn’t see but a short distance ahead of the engine. When I saw the cow she was not more than 25 yards from the engine— about that, but, of course, I couldn’t tell exactly. I am sure it was not over that distance. The cow was' standing with her front feet on the track and her hind parts off. She didn’t move until the engine struck her. . . When I saw the cow [the engine] was so close to her that it was impossible to stop the train before it struck her. I was at my place on the engine all the while, and looking out, and I saw the cow as soon as it was possible to do so. . I just didn’t have time to do anything and couldn’t do anything to prevent it. . . It was in the night. . . It was not at a public crossing. There was no signal-post there indicating a public crossing.” The fireman testified, that he did not see the cow, that he was busy firing the engine, and was not looking out ahead, when the engineer told him that the cow had been struck.

Hall & Cleveland, Bedding & Lester, for plaintiff in error.

James M. Smith, contra.  