
    18843.
    Central of Georgia Railway Co. v. Pitts.
    Decided November 17, 1928.
    
      Harris, Harris & Popper, A. S. Thurman, for plaintiff in error.
    
      W. S. Florence, contra.
   Bell, J.

In a suit against a railroad company for the killing of live stock upon its track, the “physical facts and circumstances alone in the case may afford proof of the defendant’s negligence, and may be such as to raise an issue of credibility for determination by the jury, notwithstanding the defendant’s witnesses, to rebut the presumption of negligence, may have testified as to their exercise of ordinary care and that the casualty was unavoidable.” Atlantic Coast Line R. Co. v. Paulk, 33 Ga. App. 293 (2) (125 S. E. 865). Furthermore, in the present case the jury could have found that the engineer was impeached by a contradictory statement previously made by him as to a matter relevant to his testimony and to the case. Columbus Railroad Co. v. Peddy, 120 Ga. 589 (2) (48 S. E. 149); Civil Code (1910), § 5881. It can not be held as a matter of law that the presumption of negligence was conclusively rebutted by the evidence.

The court did not err in the admission of testimony, nor fail to charge sufficiently on the measure of damages. The evidence authorized the verdict, and there was no error in refusing a new trial.

Judgment affirmed.

Jenkvns, P. J., and Stephens, J., concur.  