
    The Western and Atlantic Railroad vs. Steadly.
    1. After proof that a cow had been killed by a railroad train, the presumption of negligence arose against the company, and in the absence of sufficient evidence to rebut such presumption, a verdict for the plaintiff was right.
    2. That one of the jurors who tried a case in a justice court was a talesman, and that his name was not on the jury list or in the jury-box, is not good ground for sustaining a certiorari to the finding in that court.
    Railroads. Negligence. Presumptions. Jurors. Certiorari. Before Judge McCUTCHEN. Catoosa Superior Court. August Term, 1879.
    Steadly sued the Western & Atlantic railroad for twenty dollars damages for killing his cow. On the trial in the justice court where the suit was brought, plaintiff showed that defendant’s train had killed his cow within fifteen or twenty feet of a public road crossing; that the train was running at its usual rate of about fifteen miles an hour, and that it did not slacken its pace. The value of the cow was also shown.
    The evidence for defendant was to the effect that the whistle was blown before reaching the crossing; that the ■cow came upon the track only about thirty yards in front ■of the engine, when it was too late to slacken speed ; that the accident was unavoidable.
    The jury before whom the case was tried in the justice ■court found for the plaintiff $16.00. Defendant carried the case up by certiorari, alleging that the verdict was contrary to law and the evidence, and that one of the jurors who was .summoned as a talesman, was not qualified to serve, his name not being on the jury list or in the jury box, which fact was not known to defendant at the time of trial.
    The certiorari was overruled and defendant excepted.
    W. H. Payne; Johnson & McCamy, for plaintiff in •error.
    J. C. Clements ; I. E. Shumate, for defendant.
   'Warner, Chief Justice.

This case came before the court below on a certiorari from a justice court, and upon the hearing thereof the ■court overruled the same. Whereupon the plaintiff in certiorari excepted.

It appears from the record that the plaintiff in the justice court sued the defendant for killing his cow by its railroad train, within fifteen or twenty feet of a public road crossing. There is no dispute, from the evidence, that the cow was killed by defendant’s train, nor as to the fact that the whistle of its locomotive was not blown and its train checked in its speed as required by the 708th section of the Code, and the presumption being against the company as provided by the 3033d section, there was no error in overruling the certiorari in view of the evidence contained in the record, nor in regard to the incompetency of the juror, James. 19th Ga., 614.

Let the judgment of the court below be affirmed.  