
    Georgia Southern & Florida Railway Company v. Giddens.
    Argued June 10,—
    Decided June 26, 1903.
    Certiorari. Before Judge Seabrook. Berrien superior court. October 15, 1902.
    1. The plaintiff in error contended that the judgment dismissing the certiorari, ordering the judgment of the lower court to proceed, etc., was a final judgment disposing of a case turning solely on an issue of fact; and cited Civil Code, §§ 4652, 4655-6 ; 66 Ga. 242; 68 Ga. 517; 100 Ga. 700; 102 Ga. 151, 561; 106 Ga. 205; 107 Ga. 784.
   Candler, J.

1. On the hearing of a petition for certiorari, where the certiorari is overruled, it is not erroneous for the judge of the superior court to order “ that the judgment of the lower court proceed,” and that the officers of the superior court have judgment for their costs.

2. The evidence on the hearing in the justice’s court warranted a finding that the engineer of the defendant’s train could, in the exercise of ordinary diligence, have stopped the train in time to avoid striking the plaintiff’s cow; and it was therefore not error to overrule the certiorari.

Judgment affirmed.

All the Justices concurring.

2. After it appeared that the plaintiff’s cow was killed by a train of the- defendant, the engineer of the locomotive testified that the cow was about 50 yards ahead when she got on the track; that as soon as he discovered her he gave the cattle alarm, applied the brakes, and did all he could to stop the train; and that rain was falling, and thus it was impossible to stop as quickly as if the track had been dry. A witness testified that he was on the track from a fourth to a half of a mile ahead of the train, and saw it strike the cow. In his opinion the engineer began blowing the whistle about a fourth of a mile from where the cow was struck. The track was a little up grade at that point. Other cows were near by. “ He could not tell how far the cow was fr,om the train when she got on the track, but looked to be pretty close by.” The train slowed up considerably before it struck her. The plaintiff testified that he went immediately to where the cow was killed. He tracked her over 300 yards from where she started to where she was killed. He was not looking at her when she made the tracks along the road. Counsel for the defendant, on the contention that a finding for the plaintiff was unsupported, cited 85 Ga. 825; 108 Ga. 437; 111 Ga. 128, 731.

John, I. Hall, B. G. Jordan, and H. S. Murray, for plaintiff in error.  