
    618.
    Atlantic and Birmingham Railway Co. v. Clute.
    Certiorari, from Ben Hill superior court — Judge Whipple. May '21, 1907.
    Argued October 30, 1907.
    Decided January 29, 1908.
    
      Rosser & Brandon, Ilaygood Gutts, I. 8. HopMns Jr., for plaintiff in error. Jay & Jay, contra.
   Kussell, J.

There was no error in overruling tlie certiorari. The testimony of the defendant’s servants, if uncontradicted, would have rebutted the presumption of negligence which arose against the railroad company upon proof (though it was circumstantial) that the horse was killed by a train of the defendant company, and, had there been no further testimony, would have demanded a finding in favor of the defendant. A fact, however, can be proved by circumstantial evidence as well as by direct proof. The physical facts and circumstances in this case were sufficient to authorize the jury to disbelieve the testimony of the witnesses for the defendant, and to thereby impeach theta; and in that event, the killing being shown and the presumption of negligence not being rebutted, a verdict for the plaintiff would be authorized. Clark v. W. & A. R. Co., 2 Ga. App. 346 (58 S. E. 510). Proof of physical facts may be sufficient to disprove even positive testimony.

Judgment affirmed.  