By the Cbwri.
Benning, J.,delivering the opinion.
Was the Court below right in refusing the motion for a nonsuit? We think so.
' . The ground of the motion was, that the evidence did not show that the killing of the cows was the result of carelessness or negligence in the Rail Road Company.
*319We incline to think that the mere fact that the Company’s train killed the cows, was sufficient to raise the presumption that the killing was the result of negligence in the Company’s servants. When one man kills another, the law implies malice in the killer; so if one man kills another’s cattle, ought there not, in like manner, to be an implication of malice or negligence in the killer.
Indeed there is, perhaps, more reason to require the implication in the latter case, than there is, to require it, in the former. Our statute makes- it the duty ot all persons to keep a fence, of a certain kind and height, and it declares that if any person shall kill any other person’s cattle trespassing on land not enclosed by such a fence,' he shall pay for the cattle so killed. (Cobb. 19.) We may assume that the Legislature thought that such a fence as this would be sufficient to keep out cattle. Consequently, it would seem that the mere fact that one man’s cattle are found trespassing on another’s land, ought to be sufficient to require the presumption that the fence of the latter was a fence inferior to that which the staute prescribes.
We incline, then, to ,the opinion, that the mere fact that the train killed the cows, iwas sufficient to raise the presumption that the killing was the result of negligence in the Company’s servants. Of course such a presumption would be one subject to rebuttal.
There was, however, in the proof, more than this mere fact. The agent of the Company, when applied to for pay for the cattle, did not deny the liability of the Company to pay for them ; did not insist that in the killing of them the Company’s servants were free from fault. On the contrary, he offered to pay for the cattle, and the only reason why he did not pay for. them was, that he did not offer for them as much as was demanded.
This, and the other fact, the fact of the killing, were *320sufficient, we think, to make a prima-fade case of negligence in the Company’s servants.
Hence, we think that the judgment overruling the motion for a nonsuit was right.
If there was evidence enough to prevent a nonsuit, there was evidence enough to support the verdict, for the evidence before the jury was the same that had been before the Court. Therefore we have to think that the second and third, and fourth grounds of the motion for a new trial were also insufficient.
The first ground was the refusal of the Court to grant a nonsuit. This ground seems not to be suitable for a motion for a new trial; but if it is, it has already been considered, and found insufficient.
Judgment affirmed.