
    38730.
    WESTERN & ATLANTIC RAILROAD v. TREADAWAY.
    Decided April 4, 1961
    Rehearing denied April 14, 1961.
    
      Hugh M. Dorsey, Jr. Neel, Ault & Whiteside, E. S. Ault, for plaintiff in error.
    
      Henson, Greene & Greene, James E. Greene, contra.
   Jordan, Judge.

The evidence adduced on the trial of the case showed that the cows were killed about 7:20 p.m. on October 14, 1959, that it was dark and raining, and that the track at the place of the killing was straight. The engineer in charge of the train, testified that it was running about 60 miles per hour; that he was looking ahead and did not see the cows until they were about 300 feet, more or less, from them; that he first saw an object and applied the brakes,, and then .saw- that it-was cattle and commenced blowing the whistle, and the cows commenced running; that the train struck and-killed three.of the cows; and that on a dark, rainy night the headlights of the train would light up the track for approximately 300 or 400 feet. The fireman testified that he was looking ahead and did not see the cows until they were approximately 100 to 150 feet from them; that he and the engineer saw the cows at approximately the same time; and that he remarked to the engineer, “Look a yonder,” and the engineer put the brakes 'on emergency’ and blew the horn. The evidence indicated that the cattle dispersed as soon as the horn was sounded.

.Under these factp and circumstances the jury was authorized to find that the.engineer could, by the exercise of due care, have observed the dangerous situation of the cows in.time to have given sufficient warning to disperse them from the track. Bugg v. Huffman, 33 Ga. App. 630. (127. S. E. 657). Accordingly, the verdict was. authorized by the evidence, and the trial court did not err in denying the defendant’s motion for judgment notwithstanding the verdict.

Judgment affirmed.

Townsend, P. J., Carlisle and■ Frankum, JJ., conpwr\  