
    Savannah, Florida & Western Rwy. Co. v. McConnell.
    By two witnesses who knew the facts with absolute certainty, the . presumption of negligence was fully overcome; and apart from the presumption, there was no proof whatever of negligence. Consequently, the verdict was without evidence to support it.
    August 20, 1894.
    Action for damages. Before Judge Sweat. Ware superior court. November term, 1893.
    Erwin, duBignon & Chisholm and Hitch & Myers, for plaintiff in error.
    L. A. Wilson and J. C. McDonald, contra.
    
   Lumpkin, Justice.

There was a verdict against the railway company for damages resulting from the killing of a horse and two mules belonging to the plaintiff. The only error complained of in the bill of exceptions is the overruling of the defendant’s motion for a new trial, based upon the grounds that the verdict was contrary to law, the evidence, and the charge of the court.

The plaintiff’ depended for a recovery solely upon the presumption of negligence which the law raises against a railway company. That the animals were killed by the defendant’s train was admitted; but by the evidence of two witnesses for the company — -the engineer and the fireman — who knew with absolute certainty the facts of the transaction, it was conclusively shown that the company and its servants in charge of the train were free from all negligence in the premises. So the legal presumption against the company was fully overcome. It is true the plaintiff’ did introduce two witnesses who, according to their testimony, exhibited wonderful and extraordinary powers of vision in seeing through a dense fog at or about daylight in the morning. They did not, .however, see the catastrophe, and what they swore amounted to no proof of negligence, and should not have been allowed to overcome the positive testimony of the engineer and fireman, the former of whom appears, from the report of his evidence, to have been an unusually straightforward, candid and honest witness.

"We think the verdict was unsupported, by the evidence, and ought to have been set aside.

Judgment reversed.  