
    The Georgia Railroad and Banking Co. v. Parks.
    The presumption of negligence which the law casts upon a railroad company when the injury to person or property has been proved, was fully met and overcome by the evidence for the railroad com pany in this case. It showed that its servants exercised all reasonable care and diligence at the time of the injury. Moreover, the evidence in behalf of the plaintiff shows that there was ample time for his servant in charge of the mule to have found the bridge-watchman and given him notice that the mule was fast in the trestle. The failure to do this was the real cause of the subsequent disaster. The court erred in not granting a new trial.
    November 4, 1892.
    
      Judgment reversed.
    
    Before Gapers Diokson, judge pro hao vice. Newton ■superior court. March term, 1892.
   Parks sued the railroad company for injuring his mule so that it died, and obtained a verdict for $35. Defendant moved for a new trial on the grounds that the verdict was contrary to law and evidence, etc. The motion was overruled, and defendant excepted.

On the trial the evidence for plaintiff was: He bought the mule the day before it was hurt, at a public -sale, for $20. It was worth about $60. It died a few days after it was hurt, from the injury. It got out of the lot and on the railroad, and tried to go across the railroad bridge. It got about ten feet on the bridge and fell through and was fastened so that one Glover, who lived with plaintiff' and was trying to catch the mule, -could not do anything and turned around and came back to the little house at the bridge and holloed, but nobody was there. Glover went across the bridge to the house on the other side and holloed, but nobody was there, and then went to one Cody’s and got him to help, but they could not get the mule off. The mule stayed there about three quarters of an hour before defendant’s accommodation train came along. When it came, Glover was standing on the bridge, holloed and waved his hat; but the train went on and struck the mule, dragged it across the bridge and it rolled down the embankment. According to Glover’s testimony, the persons in charge of the train just looked at the mule and went on. He never saw the bridge watchman until after the train had gone over the bridge. The engineer or fireman said the mule ought to have been killed, that it had no business on there. The moon was shining when the train came along. Glover was standing on the bridge and Cody on the ground, off to one side. The train hardly stayed there five minutes. Another witness testified that the train stopped on the bridge about half an hour. This witness heard the train blow down at the bridge. Another testified that it was a tolerably foggy morning, the fog rising from the river, and it is often foggy there when it is not elsewhere. Witness did not remember whether the moon was shining, but it was light enough for him to see how to feed his stock. He did not hear those negroes holloing or calling out that morning at the bridge, and his house is - about one hundred yards away from the bridge. He thought the mule could have been seen by the aid of the headlight, but had never run an engine and could not say for certain. Cody testified that he was at the bridge when the mule was struck. Glover got him to go with him to see about the mule. The mule got on the bridge about half way of the trestle work, about twenty feet from the embankment, and was there about three quarters of an hour before the accommodation train came. Witness did not see the bridge watchman there that morning. Hoes not know that Glover was hunting for him before he ( Glover) holloed to witness. Glover tried to get the mule off the bridge and kept enough fuss for anybody to know it. The train did not make any stop until it hit the mule. Before the train was due at the bridge Glover asked the witness to go across and stop it, but when witness got about half way across he saw the train coming and turned back. ' When the engine struck the mule, he heard the engineer say, with an oath, “ What’s that ?” Witness did not see any fog that morning. When the train struck the mule Glover was on the embankment at the west end of the bridge. When witness started across the bridge Glover was standing by the barrel where the tin covering of the bridge is.

The engineer testified: Reached the bridge about 5:48 in the morning. Blew whistle on approaching, and was looking out ahead of the engine and in my place on the engine approaching the bridge and crossing it. Slowed down on approaching the bridge at the rate of six miles an hour. The bridge is one huudred and fifty to two hundred feet long. On arriving at the bridge, saw the watchman at the end towards Covington, which was the proper place for him to be. It was foggy and before good daylight. First saw the mule when within about twenty yards of him. The mule was about three ties from the end of the bridge near where the embankment stopped, about five or six feet. Did not know what it was at first; it looked like a heap of clinkers on the track. Reversed engine and put on brakes as soon as I discovered it, and nearly stopped the train. The engine lifted the mule up and carried him about the length of the engine. The train stopped with part of the baggage-car and the balance of the train standing on the bridge. Saw no man standing, and there was none on it near that mule. The train stayed there between five and ten minutes to repair one of the cylinder-cocks. The signal whistle was blown on approaching the bridge. Shortly after striking the mule I saw two negroes, but do not know where they 'came from and did not see them before that time. Was very close to the mule when I saw that it was a live object, and did not know really it was a mule until the engine was stopped and it got up and ran off. The mule was down in among the trestle work. — The conductor testified that the train stopped on the bridge and he went through the cars to the engine to see what was the matter, and then saw the mule going off up the railroad. Could see it was a mule, but it was before daylight, and a foggy morning. Left Covington at 5:40, and it takes •eight minutes to run to the bridge. — The bridge watchman testified : I was in my place at the east end of the bridge when the train arrived, and had been there about twenty minutes before it arrived. Nobody came to me before it arrived; nobody called to me, and I never heard any unusual noise at the other end of the bridge. The morning express passed about five o’clock, and the accommodation got there about 5:48. I was there when the express passed, and followed on after it and found the bridge clear ; remained in the watchman’s house at the west end by a fire, having no fire in the house on the east end, until and within about twenty minutes of the accommodation train time; then came back to my place at the east end, and the bridge was clear on my return. .Did not see any negroes looking for the mule; there were none there calling to me, and nobody came there hunting for me before the train came along. Heard no noise at the other end of the bridge. Had a lantern in passing and repassing on the bridge. It was not good daylight when the accommodation train came. I followed that train over, and when I got there they said the mule was gone. I never saw it at all. The train went over the bridge slowly. It was foggy.

J. M. Pace, by brief, for plaintiff in error.

J. R. Irwin, by brief, contra.  