
    9757.
    Southern Railway Company v. Sims.
    Decided October 15, 1918.
    Appeal; from Floyd superior court—Judge Wright. April 27, 1918.
    
      Q. L. Carey, Maddóx, McCamy & Shumate, for plaintiff error.
    
      Denny & Wright, contra.
   Wade, C. J.

1. The only special grounds of the motion for a new trial, not being referred to in the briefs of the counsel for the plaintiff in error, will be treated as abandoned.

2. Under all the facts and circumstances appearing in this ease, this court can not say, as a matter of law, that the presumption of negligence on the part of the defendant was wholly rebutted, and therefore that the finding of the jury in favor of the plaintiff was unauthorized. There was some conilict in the testimony touching the question whether the engineer could have seen the cow approaching the track sooner than he actually did discover her proximity and her evident intention to cross it, and consequently whether or not he was in the' exercise of full diligence at the'time. Likewise, it appears that the engineer neither blew the whistle nor did anything else, because in his judgment it would have been unavailing to do either, and in fact made no attempt to avoid the killing. The verdict had the approval of the trial judge, and, being supported by some testimony, can not be set aside on the general grounds only.

Judgment affirmed.

Jenkins and Luke, JJ., concur.  