
    Albany & Northern Railway Co. v. McArthy, administratrix.
   Beck, J. 1.

It was not error for the court to refuse a request to instruct the jury in the following language: “If the engineer in this case testified positively that he used every effort possible to prevent the accident, such testimony successfully overcomes the presumption of negligence against the railroad company, and, unless the plaintiff introduces testimony to rebut such testimony of the engineer, it is your duty to find a verdict in favor of the defendant.” This charge, besides excluding from the consideration of the jury the other testimony introduced by the defendant, except that portion of the engineer’s testimony pointed out in the request itself, violated the provision of the law that the judge shall not in his charge to the jury express his opinion as to what has or has not been proved. Civil Code, §4334; Jarrett v. Arnold, 30 Ga. 323; Kinnebrew v. State, 80 Ga. 232.

Argued March 2,

Decided March 28, 1906.

Action for damages. Before Judge Littlejohn. Lee superior court. June 16, 1905.

Hooper & Dykes, for plaintiff in error. J. W. Walters, contra.

2. No other error of law than the refusal to give the charge quoted was complained of in the motion for new trial; and as the evidence authorized the verdict, a new trial was properly denied.

Judgment affirmed.

All the Justices concur.  