124 Ga. 143 | Ga. | 1905
1. Ordinarily, on the trial of an action for damages growing out of the killing by a railway company of stock upon its track; the fact that the same train ran over other stock at a different point on the track can not illustrate the question whether or not the servants of the company in charge of the train exercised .due care in endeavoring to prevent injury to the stock for the killing of which suit is brought. But when the engineer testifies, in effect, that he neither saw nor could have seen any stock on the track until his engine rounded a curve and approached to within two hundred yards of the plaintiff’s cattle, when he immediately applied brakes and used every effort to prevent injury to them, it is competent for the plaintiff to prove that the version of the oe-ehrrence given by the engineer is untrue, by introducing testimony tending to show that the engineer in fact saw a cow belonging to another upon the track, some one hundred and thirty yards above
2. In view of the testimony upon which the plaintiff relied as overcoming the evidence introduced by the defendant company to establish its diligence, a verdict in his favor was warranted, and the court below did not commit any abuse of discretion in refusing to grant a new trial.
Judgment affirmed.