
    8279.
    Georgia Railway and Power Company v. Pounds.
   Luké, J.

1. Where section 5751 of the Civil Code (1910) is applicable (as in this case, by agreement between both parties, plaintiff and defendant), it is reversible error for the court to charge the jury, as follows: “The existence of a fact testified to by one positive witness is to be believed rather than [that] such fact did not exist because many witnesses who had the same opportunity of observation swear that they did. not see or know of its having transpired. But this rule does not apply when, parties having equal facilities for seeing or hearing a thing, one swears that it occurred and the other swears that it did not,” without further in the same Connection instructing the jury that in weighing such testimony they should take into consideration the credibility of the witnesses. Southern Ry. Co. v. O’Bryan, 115 Ga. 659 (42 S. E. 42) ; Georgia Ry. &c. Co. v. Wheeler, 141 Ga. 363 (80 S. E. 993); Ware v. House, 141 Ga. 410 (81 S. E. 118); Georgia R. &c. Co. v. Radford, 144 Ga. 22 (85 S. E. 1006).

Decided June 14, 1917.

Action for damages; from DeKalb superior court—Judge Smith. January 22, 1916.

Colquitt & Conyers, for plaintifE in error. Alonzo Field, B. B. Jackson, Westmoreland & Westmoreland, contra.

2. The assignments of error other than that dealt with above are without merit.

Judgment reversed.

Wade, O. J., and George, J., concur.  