
    The Georgia Midland & Gulf Railroad Co. v. Harris.
    Under the facts, the superior court erred in refusing to grant a new trial.
    May 24, 1889.
    Railroads. Damages. Presumptions. Negligence. Before Judge Smith. Harris superior court. October term, 1888.
    
      Reported in the decision.
    Goetci-iius & Chappell, by brief, for plaintiff in error.
    No appearance contra.
    
   Simmons, Justice.

Mrs. Harris sued the railroad company for damages, alleging that the company had killed three of her cows. The defendant admitted that the cows were killed by the running of its train, and undertook to remove the presumption east upon it by the law. The explanation of the defendant, by the railroad employes, was, that it was a dark, foggy night; that the cows could not have been seen more than twenty-five or thirty yards, on account of the mist that prevailed at the time; that the train was a passenger-train, and was running on schedule time, about twenty-five miles an hour; that the engine and the train were both in good condition, and the appliances for stopping the train were first class, it being supplied with air-brakes in perfect condition, and that the engine had good head-light; that the rails were wet, and the brakes did not hold as well when the track was wet as when dry, and that the light from the head-light was intercepted by the fog. The engineer testified that he was looking ahead at the time, and was the first to see the cattle before they were struck, and that as soon as they were seen, he applied his air-brakes and sounded the cattle-alarm whistle; that there was nothing else he could have done to prevent the killing of the cattle. The testimony of the fireman was not introduced, the other witnesses swearing that their information was that he was somewhere in Alabama. The jury found for the plaintiff, and the defendant moved for a new trial, on the ground that the verdict was contrary to law, to the evidence, etc., which motion was overruled and the defendant excepted.

Under the facts as disclosed by this record, we think the court erred in refusing to grant a new trial. The facts are exactly like those in the case of the Railroad Co. v. Wall, 80 Ga. 202, and the decision in that case controls this. Judgment reversed.  