
    Mitchell vs. The Western & Atlantic Railroad Company.
    In a suit against a railroad for damages to personalty, the question of negligence is one of fact; and therefore, where the case turned-on that question, on certiorari from a magistrate’s court, the judge-should not render final judgment, but remand the case for a new-trial, if errors have occurred.
    
      Certiorari. Before Judge McCutchen. -Whitfield Superior Court. April Term,'1880.
    Reported in the decision,
    D. W. Humphreys, for plaintiff in error.
    Johnson & McCamy, for defendant.
   Jackson, Chief Justice.

The plaintiff’s cow was killed by the running of defendant’s train; in the justice court, on trial before the jury, he recovered twenty-five dollars damages; the defendant carried the case to the superior court by writ of certiorari; that court rendered a final judgment in the cause, setting aside the verdict and rendering judgment for the defendant, without remanding the cause for another trial in the justice court; thereupon the plaintiff sued out a writ oft error to that judgment of the superior court to this court, and the error assigned is that the court erred in rendering a final judgment for defendant.

If the facts were undisputed and the case turned purely on a legal question, then the court had the legal power to-award a final judgment; if. facts were involved and in dispute and issue made thereon, then the court had not the legal power to make a final disposition of the case, but it was its duty, in our judgment, to set aside the verdict in the justice court, and award a new trial therein-' Code, §4067; 60 Ga., 100; 59 Ib., 882 ; 58 Ib., 142 ; 56 Ib., 525 ; 55 Ib., 315 ; 54 Ib., 264; 62 Ib., 345.

These cases decide the principle that on a writ of certiorari, as in other causes, facts are for the jury, law is for the court. Such is the statute cited as well as the principle ruled in the cases cited. Indeed it is the universal rule in our Georgia jurisprudence, and we derive it from the common law of our English ancestors. It is deemed so valuable as to be incorporated in the constitution, state and federal.

The only question, therefore, is, are facts involved and in dispute in this case?

The cow was killed by the train; the presumption is that it was done by the negligence of the defendant’s-agents. Code, §3033. That presumption was attempted to be rebutted by proof of diligence, and the fact of diligence or negligence, testified to variously by witnesses,, made the is^ue in dispute. Questions of negligence are always issues of 'fact, and for the decision of the jury. 34 Ga., 330; 56 Ib., 457, 540.

The judgment must be reversed on. the ground that the court erred in rendering a final judgment, instead of sending the case back for a new trial before a jury in the justice court.

Judgment reversed.  