
    Atlanta & West Point Railroad Company v. Thornton.
    August 5, 1895.
    Appeal. Before Judge Harris. Troup superior court. November term, 1894.
    The plaintiff obtained a verdict for tbe value of two bead of cattle killed by a passenger-train. Tbe railroad company moved on tbe general grounds for a new trial, and tbe motion was overruled. According to tbe testimony for plaintiff, tbe train was running about 30 or 35 miles an hour, and did not decrease speed. Tbe engineer blew tbe whistle before striking tbe cattle. They could bave been seen for 350 yards before reaching them. Tbe engineer testified that tbe train was running from about 25 to 30-miles an hour, and everything was in good order; that be was coming round a curve, saw tbe cattle as soon as it was possible to see them, and did all be could to stop tbe train, putting on tbe air-brakes and blowing tbe cattle alarm; that be did not reverse tbe engine, as that would not bave helped; that be was about 100 yards from tbe cattle when be first saw them, and tbe train could not be stopped in that distance. He denied having testified, in tbe county court, that be saw tbe cattle about 140 yards off, that they were on tbe track coming toward him, that be thought they would get off tbe track, and that be could stop tbe train in 100 yards. There was testimony to tbe effect that be did so testify in tbe county court; and testimony on tbe other band, that bis testimony was substantially tbe same there as on tbe present trial.
    ' T. II. WMtaker and Dorsey, Brewster & Howell, for plaintiff in error. Longley & Longley, contra.
   Lumpkin, J.

The plaintiff’s evidence, aided by the legal presumption, making a prima facie case for a recovery, the verdict in his favor, after its approval by the trial judge, will not be disturbed. Although the testimony of the defendant’s main witness may, when taken alone, have been sufficient to establish due diligence on the part of the defendant, there was other evidence warranting the jury in discrediting the testimony of this witness. Judgment affirmed.  