
    East Tenn., Va. & Ga. Railway Co. v. Powell.
    The evidence of the plaintiff in his own behalf being in conflict with, that of the sole witness for the defendant as to a physical fact somewhat material, to wit, whether there was a curve, or whether the line was straight at the scene of the injury, there was no abuse of discretion in overruling the motion for a new trial, the jury having found consistently with the plaintiff’s evidence, and that, together with the legal presumption in his favor, arising under section 3033 of the code, being sufficient to warrant the verdict.
    April 23, 1894.
    Argued at the last term.
    
      Judgment affirmed.
    
    Action for damages. Before Judge Smith. Dodge superior court. March term, 1893.
   Powell sued the railroad company for the killing of two mules by the running of a freight-train, and obtained a verdict. The company moved on the general grounds for a new trial, and the motion was overruled. The testimony of plaintiff showed, that the mules broke out of his inclosure (which was in good condition) at night, and were found next morning lying dead by the railroad track about ten steps from the mouth of a cut. The track ran through his field, and was straight for •about 400 yards. The mules’ tracks indicated that they ran about half that distance before they were struck by the train. Both freight and passenger-trains were running at night. Nor defendant, the fireman on the engine which killed the mules (the engineer being no longer in its employment) testified that the train was about 50 yards from the mules when he first saw them. They could not have been seen nearer; they were around a curve. When they were seen, the engineer blew down brakes, reversed the engine, blew the alarm whistle and tried to stop the train. It ran 800 or 400 yards before it stopped, and could not have been stopped in a shorter distance. The accident could not have been avoided. It was dark and foggy. Being on a curve, the headlight shone but a short distance on the track. The train was running at schedule speed, about twenty miles an hour, when the mules were seen. ■ They remained on the track when the whistle blew. On a straight track the light would not have shone more than 200 or 300 yards, etc.

DeLacy & Bishop, for plaintiff in error.

Roberts & Smith and W. M. Clements, contra.  