
    Central of Georgia Railway Company v. Hughes.
    Submitted July 18, 1906.
    Decided February 15, 1907.
    Action for damages. Before Judge Felton. Houston superior court. January 27, 1906.
    
      Hall & Wimberly, for plaintiff in error.
    
      Joseph U. Hall and Warren Roberts, contra.
   Beck, J.

1. It being a material matter of inquiry as to what was'the condition of the headlight of the locomotive of the defendant’s train at the time it was alleged to have struck and killed the plaintiff’s horse, to recover the value of which this suit was brought, evidence tending to show the condition of the light at a point four or five miles distant' from the place at which the animal was killed was not entirely irrelevant.

2. There being evidence to authorize the jury to find that the plaintiff’s horse was killed by the running of the defendant’s locomotive and train as alleged, it was not error for the court to charge the jury as follows: “If the defendant does show by the testimony in the ease that they have exercised all ordinary and reasonable care and diligence, and, notwithstanding the exercise of that ordinary care and diligence — ordinary and reasonable care and diligence, they did not and could not have avoided the injury, then, although the plaintiff’s horse was killed by the company, the plaintiff would not be entitled to recover.”

3. This being a suit for the recovery of damages, and the evidence upon the question of the amount that the jury should find for the plaintiff, in the event their verdict was in his favor, not being such as to limit them absolutely to any 'one given sum, it was the duty of the court to charge the jury the law as to the measure of damages; and the failure to do so was error.

4. Except as above ruled, no reversible error is shown to have been committed in the trial.

Judgment reversed.

All the Justices concur, except Fish, O. J., absent.  