
    1989.
    Georgia Railroad & Banking Company v. Wheeler.
    Action for damages — appeal, from Greene superior court— Judge Lewis. June 15, 1909.
    Submitted July 20, —
    Decided October 5, 1909.
    
      Joseph B. & Bryan Gumming, Park <& Park, for plaintiff in error.
    
      James Davison, contra.
   Powell, J.

1. Tlie verdict is not without some evidence to support it.

2. The action being against a railroad company for the killing of cows by the operation of its train, and the defendant having pleaded its own freedom from negligence, without pleading any contributory negligence on the part of the plaintiff, it was not error for the court to refuse to allow the defendant to prove that the plaintiff left his pasture gate unlocked, and that thereby the cows escaped, so that they went upon the railroad track. M. & W. R. Co. v. Barber, 42 Ga. 301.

3. The charge of the court is not fairly susceptible to the criticism that it expresses an opinion upon the facts of the ease.

4. The court properly instructed the jury upon the enhancement of the damages by the allowance of interest. The verdict, especially as amended by the plaintiff’s voluntarily writing off a portion of the recovery, is not without the requisite pleading to support it.

5. The request to charge upon the duty of the railroad company in approaching a private crossing was properly refused. It would not have been proper for the court to tell the jury what particular acts of diligence the company should or should not omit under such circumstances.

Judgment affirmed.  