
    5336.
    Ocilla Southern Railroad Company v. Dorminy.
    Decided January 27, 1914.
    Certiorari; from Berrien superior court — Judge Thomas. Oeto ber 18, 1913.
    
      H. J. Quincey, Lovett & Murray, for plaintiff in error.
   Roan, J.

1. Where, during the time that a railway train was standing at a station, three hogs went under the train and lay down, and two of them were run over and killed by the train as it moved out of the station, the presumption of negligence, arising against the railroad company, is not rebutted until it is made affirmatively to appear that the servants of the company in charge of the train did not know of the presence of the hogs under the train, and by the exercise of ordinary care could not have discovered this fact. In the present case a witness testified that the engineer and the fireman were on the engine and could not have seen the hogs under the train immediately prior to the time they were killed. This witness further testified that he did not see the conductor^ but supposed he was inside the train. This evidence did not demand a finding that the servants of the company did not know of the presence of the hogs under the train and could not have discovered their presence by the exercise of ordinary care.

2. The court did not err in refusing to sanction the certiorari.

Judgment affirmed.  