1. As has been repeatedly ruled by this court, it is not cause for a new trial that the judge, in giving in charge a pertinent and applicable principle of law, failed to charge in connection therewith some other principle equally pertinent and applicable. Accordingly, after verdict in an action for damages for the alleged 'negligent killing of the plaintiff’s horse by a street-railway company, a new trial will not be granted because the court charged that when the plaintiff showed that the horse was killed by the car of the defendant, the burden would then be shifted to the defendant to show that it exercised all reasonable care and diligence, without charging in the same connection the other defenses which would relieve the defendant from, liability.
2. It was not error, for any reason assigned, to charge that “arailway company can not use unnecessary noises to frighten horses,” and that if the jury believed that the plaintiff’s horse was frightened by an unnecessary noise made by the car of the defendant, they should “find this fact against the railway company.”
3. There was evidence to authorize a finding that the plaintiff was without fault; that the defendant was negligent in running an unusually wide car at a rapid and dangerous rate of speed on a narrow street; and that by reason of the defendant’s negligence the plaintiff’s horse, which was stationed as far away from the street-car tracks < as possible, was so startled that it threw up its head at the approach of the car in such a manner as to be struck and killed. It is for the jury to say whether or not a given act constitutes negligence. Their verdict in this case was approved by the trial judge, and, there being some evidence to support their finding, this court, •following its well-established custom, -will not interfere with the judgment overruling the motion for a new trial.
Judgment affirmed.
All the Justices concur, except Simmons, G. J., who dissents. The verdict was against the railway company, for $75. In its motion for a new trial, the overruling of which it assigned as error, it alleged that the verdict was contrary to law and the evidence, and that the court erred in the following instructions to the jury: (1) “ That law means this, that when the plaintiff shows that this horse was killed, the law presumes negligence against the company. It presumes that the company was negligent, and then the burden is shifted to the railway company to show that it exercised all reasonable and proper care and diligence; and if it shows that, then you would be authorized to find against the plaintiff and for the company.” (2) “ A railway company can not use unnecessary noises to frighten horses.” (3) “ If you'believe that it was an unnecessary noise, and that unnecessary noise frightened the horse, then you would find this fact against the railway company.” It is alleged that the first of these instructions was error, because the court failed to charge, in connection with it, as to other defenses which would relieve the defendant from liability ; and that the other instructions were erroneous in charging that the use of unnecessary noises was negligence per se, and also in stating only a part of the rule, the law being that noises must be both unusual and unnecessary before the jury can base on them a finding of negligence. Cited by counsel, as to the general grounds of the motion for a new trial: 117 Ga. 221; 114 Ga. 133, s. c. 119 Ga. 70 ; 114 Ga. 760; 93 Ga. 253; Id. 319; 79 Mo. 336(4); 25 Mo. App. 227 ; 39 111. App. 443 ; 64 Miss. 637, 641; 21 So. 249 ; 5 So.-630 ; 3 So. 170; 44 Pa. 929; 29 S. W. 320;' 39 S. W. 31; 37 Atl. 516; 74 N. W. 361; Thomp. Neg. §2108. As to the charge of the court: Civil Code, § 2322; 68 Ga. 744(3); 118 Ga. 418; 120 Ga. 475 ; 94 Ga. 560; 104 Ga. 247; 113 Ga. 849; 114 Ga. 370, 386, 389; 110 Ga. 247(2); 119 Ga. 523 (4); 121 Ga. 29 ; 101 Ga. 66. Rosser & Brandon and W. T. Colquitt, for plaintiff in error.