
    Macon, Dublin and Savannah Railroad Company v. Stewart.
   Cobb, P. J.

1. In. a suit for damages against a railroad company for the killing of stock, the engineer of the defendant should be permitted to testify to what he did in order to prevent the injury, and leave to the jury the determination of the question whether in doing the acts detailed he did everything to prevent the injury which ordinary diligence required. Testimony of such an engineer that he could have done no more than lie did to stop the train before striking the animals was a mere conclusion of the witness, and was inadmissible as evidence. Central Ry. Co. v. Bagley, 121 Ga. 781 (3), and cit.; Central Railroad v. DeBray, 71 Ga. 406 (3).

2. The mere failure of a railroad company to settle a claim for damages, even after the' party holding the claim had been invited to discuss the matter of settlement, is not stubborn litigiousness rendering the company liable for attorney’s fees in an action brought on the claim.

3. That the jury embraced in their verdict a finding of interest, when no instruction on the subject of interest had been given them by the court, is not such evidence of bias and prejudice against the defendant as will require the granting of a new trial.

4. There was no evidence authorizing the jury to find attorney’s fees against the defendant.

5. The evidence warranted the verdict so far as the principal sum stated therein was concerned, and there was no error requiring the granting of a new trial as to this part of the verdict.

Argued February 22,

Decided March 23, 1906.

Action for damages. Before Judge Burch. City court of Dublin. April 24, 1905.

John M. Stubbs and ATcerman & Aherman, for plaintiff in error.

Griner & Adams, W. G. Davis, J. K. Hines, and J. E. Jordan, contra.

<5. On the question whether the evidence was sufficient to establish that the cause of action originated in the county in which the suit was brought, the Justices are evenly divided in opinion.

7. The plaintiff having voluntarily written off the amount in the verdict found as interest, the judgment will be affirmed, with direction that the amount found as attorney’s fees be also written off, and the judgment in other respects stand affirmed.

Judgment affirmed, with direction.

All the Justices concur.  