1. The evidence for the plaintiffs showed that the animal for the killing of which suit was bronght was killed by the running and operation of the defendant’s train; and the presumption arose that the defendant was negligent.
Argued May 25, Decided June 16, 1905. Certiorari. Before Judge Roberts. Irwin superior court. October 28, 1904. J. L. Sweat and Haygood & Cutts, for plaintiff in error. L. Kennedy, contra.2. Some of the evidence offered hy the defendant tended to show that its employees in charge of the train exercised due care to avoid the injury; but the engineer was not produced, and the evidence of the fireman, on account of the length of time intervening between the occurrence and the trial, was very uncertain, there being a failure on his part to recall with any degree of positiveness anything done by any member of the train crew to prevent the killing. From other witnesses there was some slight evidence tending to show that due diligence was not observed. The jury trying the issues of fact took this view of the evidence, the judge of the superior court, upon certiorari, sustained their finding, and this court will not reverse the judgment overruling the certiorari.
Judgment affirmed.
All the Justices concur, except Simmons, C. J., absent.