This was an action brought to recover damages from the Georgia Railroad Company on account of the engineer’s blowing the whistle of his locomotive and frightening the plaintiff’s horse, whereby the plaintiff was thrown from his buggy and injured.
The case has been here twice before — 60 Ga., 492 ; 62 Ga., 339. This is the third verdict for the railroad company — rather an unusual occurrence — and unless there has been material error of law it ought to stand,
*591. There is no error in the first ground of the motion for a new trial. What the plaintiff said, sometime after the occurrence, in respect to the engineer’s fault in blowing the whistle and shaking his fist first at him, is not res gestee, and admissible as such. Besides, the plaintiff swore to the same fact on the stand.
2. What the engineer said about it after he got to Union Point, a station some distance from the place where the accident and injury occurred, and especially about his malice toward plaintiff, was not admissible against the railroad.
3. Whether or not the court erred in charging on contributory negligence, the plaintiff was not and could not have been hurt, the jury having found for defendant— that is, that his own fault and negligence- in taking care of himself had caused the injury.
That was a question of fact for the jury. There was testimony oh both sides of the issue, and on the assignments of error the court having committed none, and the evidence being sufficient to support this, the third verdict, it must stand. As a general rule, under the English common law, and our own growing out of it, facts are for the jury, law for the court.
Judgment affirmed.