
    4360.
    Seaboard Air-Line Railway v. Lott.
   Pottle, J.

This being' an action against a railway company for the negligent killing of a mule by one of its locomotives, and tlie uncontradicted evidence being that the mule suddenly came upon the track in front of the engine from behind a house, where it could, not have been seen, and that it was impossible to have stopped the train after the mule was seen, the statutory presumption of negligence, arising from proof of the killing, was overcome, and there could not be a recovery. Atlantic Coast Line R. Co. v. Whitaker, 10 Ga. App. 207 (73 S. E. 34).

Decided December 10, 1912.

Action for damages; from city court of Saint Marys — Judge Atkinson. June 22, 1912.

Bolling Whitfield, for plaintiff in error.

J. Roy Lang, S. C. Townsend, contra.

Judgment reversed.

Russell, J.,

dissenting. In my opinion the trial judge did not err in re-

fusing a new trial; for the reason that the jury was authorized, by the circumstances detailed by the plaintiff’s witnesses, and which illustrated the killing, to disregard the testimony in behalf of the defendant.  