
    17345.
    SOUTHERN RAILWAY COMPANY v. GODFREY.
    Tlie presumption of negligence raised by proof of the killing of the plaintiff’s dog by the running of the defendant’s train was not conclusively rebutted by the evidence introduced by the defendant. The verdict rendered in the plaintiff’s favor by the jury in the justice’s court being authorized by the evidence, the superior court did not err in dismissing the certiorari, by which the verdict was attacked upon the usual general grounds only.
    Justices of the Peace, 35 O. J. p. 883, n. 73.
    Railroads, 33 Cyc. p. 1305, n. 39,
    Decided January 24, 1927.
    Certiorari; from Whitfield superior court — Judge Tarver. March 13, 1926.
    J. J. Copeland, W. M. Sapp, Maddox, Maddox & Mitchell, for plaintiff in error.
    
      O. R. Hardin, contra.
   Bell, J.

In this action brought in a justice’s court against the railway company, to recover damages for the alleged killing of the plaintiff’s dog, the defendant, after verdict in favor of the plaintiff, carried the case by certiorari to the superior court, attacking the verdict upon the usual general grounds only. The certiorari was dismissed and the defendant excepted.

The evidence introduced by the plaintiff amply authorized the inference that the dog was killed by the defendant’s northbound passenger-train, No. 32, in the afternoon, a little before sundown, on July 11, 1925. The only evidence introduced in rebuttal by the defendant was the testimony of the engineer • and fireman. The engineer testified as follows: “ On this date I left Atlanta on time and arrived in Chattanooga on time, and I think we were on time when we passed Carbondale. We passed Phelps at 6:20 p. m. The track south of Phelps is straight for a little over a half mile. Plaintiff’s 'dog is said to have been killed bétween the 46th and 47th mile-posts, where the track is straight. I ride on the right-hand side of the engine, and my duties are to run the engine and keep a lookout, which is necessary for me to do and which I do in order to keep from-striking something and for the general safety of the train, its passengers, and the general public. If a dog had appeared on the track between the mile-posts mentioned I would have seen it, but on this occasion I saw no dog, because no dog appeared in front of the train. It was up grade at this point and I could have seen a dog for a half mile. I saw no dog on this occasion, and if I had struck and killed a dog there I would have remembered it, if the dog had come on the track on my side of the engine and had been more than fifteen yards in front of it. My information is that dogs sometimes get killed in the rear of the engine when I know nothing about it, but I have never seen one. If the dog came on the track from the fireman’s side, I could not have seen it less than 15 yards.”

The testimony of the fireman was: “I am a fireman pi the Southern Railway Company, between Atlanta and Chattanooga. I reside on Cascade Road, Atlanta, my address being Ben Hill, Georgia. On July 11, Í925, 1 was on passenger-train- No. 32, from Atlanta to Chattanooga, and I think we were on time for we reached Phelps at 6:20 p. m., which was on time. The sun was shining when we reached Phelps. My duties as fireman are to keep steam on the boiler, and, while not doing that, to keep a lookout ahead. My seat is on the left side of the engine. Leaving Carbondale, approaching Phelps, it is down hill, and I always put in a fire there. Approaching a point where it is said the dog was killed, it is up grade, and in going up this grade it is necessary that I fire the engine. Section foreman Camp showed me where the dog was found, and going north it is up grade at this point. I did not see a dog on this occasion and don’t know anything about how it was killed. If I had seen the dog I would have told the engineer.”

In Alabama Great Southern R. Co. v. Buchannon, 35 Ga. App. 156 (132 S. E. 253), this court in a similar case said: “In view of the fact that neither the fireman nor the engineer saw or was conscious of the occurrence at the time, and that their material testimony was largely hypothetical and opinionative, we can not say that the jury were bound to conclude that the employees of the railroad company used ordinary and reasonable care and diligence to discover the dog upon the track and to avoid injuring it.” This language applies so aptly to the rebuttal testimony in the present case, that is, the testimony of the engineer (the fireman’s testimony having little or no probative value), that we adopt it as the expression of our opinion herein. The court did not err in overruling the certiorari.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.  