
    Central of Georgia Railway Company v. McWhorter.
    Submitted November 18, —
    Decided December 12, 1904.
    , Action for damages. Before Judge Henry. Walker superior court. August 17, 1904.
    
      J. Branham and F. W. Copeland, for plaintiff in error.
    
      Bale & Shaw, contra.
   Evans, J.

According to the testimony of the company’s engineer, the horse for the killing of which the plaintiff sought to recover damages suddenly ran upon the track, about twenty yards ahead of his engine, and then down the center of the track to the point where it was killed ; and he used every effort to avoid injury to the horse, and could not sooner have discovered its presence on or near the track, because of a curve in the road-bed, a high embankment, and some bushes. The testimony offered by the plaintiff tended to [ show, that, notwithstanding the curve, the embankment, and the bushes, the horse, might have been seen at least one hundred and forty-four yards from the point where the animal was killed ; that the horse had walked some two hundred yards along the track in the direction of the approaching train, and had then turned and fled from it a distance of twenty yards, never leaving the track at all; so that the animal could not, as testified by the engineer, have suddenly run in front of the engine from a point adjacent to the roadbed. In view of this conflict in the evidence, and of the fact that the defendant did not undertake to show that the injury to the animal could not have been prevented even though it had been seen on the track one hundred and forty-four yards distant from the engine and all precautionary measures had been promptly taken, the verdict in favor of the plaintiff was warranted, the presumption of law being that the company was guilty' of negligence. Judgment affirmed.

All the Justices concur.  