The defendant in error brought her action against the plaintiff in error and obtained a verdict and judgment. The defendant moved for a new trial on various grounds, which motion was overruled by the court below, and defendant excepted, and error thereon is assigned to this court.
*5161. The action was originally brought against the Central Railroad and Banking Company. The declaration was subsequently amended, without objection, by adding the words, after “Central Railroad and Banking Company,” “of Georgia, lessees of the Southwestern Railroad Company.” While the action remained against the Central Railroad and Banking Company, and before amendment, certain interrogatories were sued out for Georgia Sanders and others, and the case was stated on the interrogatories as it appeared originally in the declaration. The declaration having been amended as above stated, when the depositions were returned into court, counsel for plaintiff in error moved to suppress the same, upon the ground that when the interrogatories were sued out, there was no case against the plaintiff in error in court. This motion was refused by the court below, and this forms the first ground of complaint by plaintiff in error.
When the declaration was amended, there was a good case against the defendant. This amendment was more formal than real; the misnomer was so amended as to make the declaration speak the truth as to the name of defendant. The defendant was fully advised by the interrogatories of plaintiff as to the case the witness was to be examined about. The questions were full, and the crosses of defendant were likewise full as to all matters embraced therein. We think the testimony was admissible, and the court did right to refuse to suppress the same. See Wright vs. Zeigler Bros., 70 Ga., 502.
2. The defendant moved to suppress other interrogatories, after the amendment to plaintiff’s declaration had been made, on account of some informality as to the statement of the case in the interrogatories. Whatever merit there may have been in this motion when made, the plaintiff in. error having waived the ground in its motion for new trial that the verdict was excessive, and as this testimony goes alone to the injuries received by plaintiff, which bears alone upon the question of damages, the *517ruling of the court below oil this motion, whether right or wrong, is quite immaterial; and if wrong, under the present aspect of the case, would not work a reversal.
3. It is insisted by the able and ingenious counsel for plaintiff in error that the verdict is not supported by the evidence. When one is injured by the running of the cars and engines of a railroad company, the law presumes that such injury was the result of the negligence of the railroad company, and such company, to relieve itself of such presumption, must show that it used all ordinary care and diligence to have prevented the injury. It is admitted by counsel for plaintiff in error that the company did not know how this accident occurred ; that it is impossible to find out. But we submit that, notwithstanding the ignorance of the company as to the cause of the accident, the presumption still exists of negligence on its part. The defendant must show, to rebut the presumption, that it used all ordinary care and diligence.
This record shows affirmatively that the company was negligent in not having a suitable track; that the outside of the curve was lower than the inside; that the train was behind its time and was running rapidly to make up; all these things were in evidence and submitted to the jury. The judge who tried this case was satisfied with the verdict, — at leasthe refused to interfere with the same. Where there is evidence to-support the verdict, and the judge who-tries the case refuses to grant a new trial, this court will. not interfere.
Judgment affirmed.