
    11348.
    GEORGIA NORTHERN RAILWAY CO. v. BATTLE.
    Decided May 11, 1920.
    Rehearing denied July 29, 1920.
    Whether the presumption of negligence on the part of the railroad company, which arose on proof of the killing of the plaintiff’s stock by a train of the company, was successfully rebutted was the only issue in the case; and the evidence authorized a finding against the defendant.
    Action for damages; from Colquitt superior court — Judge Thomas. January 23, 1920.
    
      W. F. Way, for plaintiff in error.
    
      Parker. Gilson & Roddenbery, J. B. Fussell, contra.
   Bloodworth, J.

This is a suit for damages against a railroad company for killing stock. It is admitted that the stock were killed, and the only issue is whether or not the railroad company successfully rebutted the presumption of negligence that arose against it upon proof of the killing. The evidence for the railroad company tended to show that the engineer and the fireman were in the exercise of all ordinary care and diligence, and that the killing of the stock was not due to any negligence of the defendant or its employees, but there was some evidence to contradict this, and the judge, who by agreement passed upon the case without the intervention of a jury, having decided that the presumption against the railroad was not overcome by the evidence, this court will allow his finding on the facts to stand.

Judgment affirmed.

Broyles, C. J., concurs. Luke, J., dissents.  