
    Selma, Rome and Dalton Railroad Company, plaintiff in error, vs. J. B. Fleming, defendant in error.
    (Atlanta,
    January Term, 1873.)
    
    1. Injuries to Animals by Railroads — Damages.—When-there was a trial of a suit for damages for killing the plaintiff’s cow against a railroad company, and the declaration claimed as a part of the damages, expenses of litigation under section 3801 of Irwin’s Revised Code:
    Held, That it was not error in the Court to permit the plaintiff to prove “that he offered to compromise, that they refused and offered to pay him $30 00. He refused to take $50 00, but was willing to settle without suit.”
    2. Same — Negligence—Questions of Law and Fact. — In an action against a railroad company for killing a cow of the plaintiff by the running of its cars it was not error in the Court to refuse to charge as requested: “If plaintiff’s cow fell down a bank and rolled under the train after the engine passed her, or if the cow jumped on the track fifteen feet in front of the engine, then the accident was unavoidable and the company is not liable.” Whether the company was negligent or not it was for the jury to find, and it was not the duty of the Court to decide whether or not, under such circumstances, there was neligence.
    3. Verdict — Contrary to Evidence — Case at Bar. — The verdict is ■not illegal as contrary to the evidence.
    Railroads. Damages. Evidence. New .trial. Compromise. Before Judge Harvey. Floyd Superior Court. January Adjourned Term, 1872.
    Fleming brought suit against the Selma, Rome and Dalton Railroad Company for damages sustained by him, resulting from the killing of his cow by the defendant. The defendant pleaded not guilty. The expenses of litigation were claimed by the plaintiff as a part of the damages. The jury returned a verdict for the plaintiff for $60 00 and costs. The defendant moved for a hew trial upon the following ground, to-wit: *lst. Because the verdict is contrary to the evidence and the law.
    2d. Because the Court erred in refusing to exclude the testimony of the plaintiff on the subject of the offer of compromise made by defendant, as follows: “They offered to pay me $30,00, and I refused. I refused to take $50,00, but was willing to settle without a law suit.”
    3d. Because the Court erred in refusing to charge the jury as follows: “If the plaintiff’s cow fell down a bank and rolled under the train after the engine passed her, or if the cow jumped on the track fifteen feet in front of the engine, then the accident was unavoidable, and the railroad company is not liable.”
    The motion was overruled, and the defendant excepted upon each of the grounds aforesaid.
    PrinTup & Fouci-ie, for plaintiff in error.
    W. D, Eeam, by T. W. Alexander, for defendant.
    
      
      Attorney’s Fee. — Trader’s Ins. Co. v. Mann, 118 Ga. 384, 45 S. E. Rep. 426, cites the principal case with approval.
    
    
      
      Negligence — Fact for Jury. — In the case of Central Railroad, etc., Co. v. Opie, 58 Ga. 348, where the issue was a question of negligence, and there was some evidence from which the jury could infer negligence, the court held, that repeated findings, ta the same effect, ought to be respected, citing with approval the principal case. .
    
   McCay, Judge.

Under section 2891, Irwin’s Revised Code, damages for a tort may be increased by the expenses of litigation, if the defendant have shown himself specially litigious in the matter. This, declaration claimed such an increase on the ground of such litigiousness. The evidence offered was some evidence going to show it. Plaintiff offered to compromise — defendant refused— offered $30 00, etc. The evidence is very weak, it is true. It goes to prove it, and that is all; and had the jury, by their verdict,, found any such expenses,' we should hesitate to sustain it. But, under the proof, if they found for the plaintiff at all, their verdict is not more than it ought to be. The cow was proven by two witnesses to be worth more than the verdict, and there is no contradiction of these witnesses.

What constitutes negligence is eminently a question for the jury. For the Court to pronounce an accident “unavoidable,” would be an usurpation of power. In the very nature *of things, it must be a question of fact, whether, under a given set of circumstances, the accident was unavoidable. In this very case, is the- Court authorized to say that an engine cannot be stopped instantly? Is not that a fact for the jury? What is negligence and what is prudence, the law only defines by referring to the conduct of prudent men. How prudent men act is referred to the jury, who are presumed, by their habits of life, to have informed themselves upon the subject. We think, therefore, that the Judge was right in refusing to say to the jury that this or that state of facts would make the accident unavoidable. He might define the meaning of the word, but to say as was asked would be beyond his sphere. Nor do-we think this verdict so contrary to the testimony as to be illegal. We are not prepared to say that the company and its agents were-perfectly free from fault. Was it prudent to run at that speed,, at that place? Pías an engine driver the right to rush on, seeing cattle by the road side, and knowing, as he does, that often, in their fright at his huge machine, they will rush right before it? Pías anybody a right, even on his own land, to do a dangerous thing, unless he incloses that land against animals authorized by law to roam at large? -

We think there is enough testimony to justify this verdict, and it was for the jury to say which of the witnesses it believed.

Judgment affirmed.  