(After stating the foregoing facts.)
It is insisted by the plaintiff that the judge, without any request, *254should have explained to the jury that when a dead body is found near to a railroad track in a mangled condition, indicating that death'was caused by violence, and no other cause of death is made to appear, and the evidence fails to show that any other person bad an opportunity to do the killing, the presumption thereupon arises that the killing was done by a railroad engine or ear. While it is true that the issue of fact as to whether or not the homicide was occasioned by the defendant corporation may be proved by circumstantial evidence as well as direct testimony (Atlantic & Birmingham Railway Co. v. Clute, 3 Ga. App. 508, 60 S. E. 277; Central Railroad Co. v. Bryant, 89 Ga. 457 (2), 15 S. E. 537; Travelers Ins. Co. v. Sheppard, 85 Ga. 751 (3), 12 S. E. 18), we think that on the issue thus made the burden was upon the plaintiff to show, by either direct or circumstantial evidence, the truth of her contention, and that no presumption arises or can be invoked in her favor, notwithstanding the evidence may have been amply sufficient to authorize the jury to believe the truth of her contention. That they were authorized so to believe in the present case we think is true; and that they could have so found under the charge of the court as given is also true, notwithstanding the fact that the court did not, in his charge, give to the jury the definition of circumstantial evidence and explain its weight and purpose. It is insisted by counsel for plaintiff that the court, without any request, should have given in charge the definition of indirect or circumstantial evidence as embodied in section 5729 of the Civil Code of 1910. It has in fact been repeatedly held by the Supreme Court that on the trial of a criminal case where a conviction depends entirely upon circumstantial evidence, it is the duty of the judge, whether so requested or not, to give in charge to the jury the principles of law by which the weight of the circumstances is to be determined, and under what circumstances a conviction on circumstantial evidence is warranted. Weaver v. State, 135 Ga. 317, 320 (69 S. E. 488). This is a duty which the court owes to the defendant, since section 1010 of Penal Code of 1910 provides that, in order to warrant a conviction on circumstantial evidence, the proved facts must not only be consistent with the hypothesis of guilt, but must exclude every other reasonable hypothesis than that of the guilt of the accused. But in the present civil action the charge of the court authorized the *255jury to find that the homicide was occasioned by the running of defendant’s cars, and stated that in determining this and other issues a preponderance of evidence would be considered sufficient to produce mental conviction. We do not, therefore, think that the plaintiff was injured by the failure of the court to elaborate upon the definition, weight, and purpose of circumstantial evidence, since the doctrine recognized by the Supreme Court in the criminal cases referred to by counsel is intended to protect the defendant, and to restrict rather than to enlarge the probative value of such testimony in criminal cases.
As a general rule, it will not be held to be reversible error, in the absence of a timely and appropriate request, to omit to instruct the jury upon the burden of proof (Small v. Williams, 87 Ga. 682, 13 S. E. 589; Brooks v. Griffin, 10 Ga. App. 497 (5), 73 S. E. 752; Central Railway Co. v. Manchester Mfg. Co., 6 Ga. App. 254, 64 S. E. 1128; Lazenby v. Citizens Bank, 20. Ga. App. 53, 92 S. E. 391, 392), although, if the court does charge the jury upon this subject, it must do so correctly. Cox v. McKinley, 10 Ga. App. 492 (73 S. E. 751). But in a suit for damages against a railway company, upon it being shown that the injury complained of was occasioned by the running of defendant’s cars, it is not ordinarily then incumbent upon the plaintiff to prove the alleged negligence of the defendant by a preponderance of the evidence; but when the cause of the injury thus becomes established, the legal and statutory presumption arises that it was occasioned by the company’s negligence, and in such case the law of such presumption as embraced by section 2780 of the Civil Code of 1910 must be given in charge as a part of the general law of the case, without any request to that effect. Killian v. Georgia Railroad Co., 97 Ga. 727 (3) (25 S. E. 384). Thus, assuming that the evidence pertaining to the use by pedestrians of the portion of the track where the homicide occurred was sufficient to authorize the jury to find that a duty existed on the part of the company to anticipate the presence of persons on the defendant’s property at that point, then we think, under the rules of law stated in the first headnote, that the instruction complained of in ground 3 of the amendment to the motion for 'a new trial, taken by itself, would be erroneous. This portion of the charge is as follows : “While the burden is on the plaintiff to prove her case as *256alleged, by a preponderance of the evidence, it is a rule of law, that if injury is proven to have resulted to person or property by the operation of a locomotive or ears of a railroad company, the presumption arises, in the absence of evidence to the contrary, that such injury was due to the negligence of such company, or to the negligence of its employees.” In a case where a degree of anticipatory care and prudence was owing by defendant to the deceased, and it is shown that the homicide resulted from the operation of defendant’s cars, the presumption of negligence thereupon arises against the company, whether “evidence to the contrary” is introduced Or not; the purpose of such rebutting testimony being to overcome and not to prevent the arising of such presumption. But the trial judge in the present case charged the jury, in the same connection and immediately following the excerpt from the charge above quoted, as follows: “This presumption, however, is merely prima facie, and may or may not be rebutted by proof; and‘the burden of proof is thereby shifted upon the railroad company to show that such injury was not due to its negligence or the negligence of its employees. In such cases the prima facie presumption would be successfully rebutted by the railroad company whenever it is shown by a preponderance of the evidence that the alleged injury was not due to the negligence of such company or due to the negligence of its employees.” Thus, taking this entire portion of the charge, we think the clear intent and meaning thereof is not subject to -the criticism offered, and that the jury could ■not have been thereby misled. The other objections to the charge as given, as set forth in the motion for new trial, are without merit. The jury were permitted to say whether or not the.duty existed on the part of the defendant of anticipating the presence of deceased at the time and place of the alleged homicide, and, if so, whether or not such duty was met. The testimony permitted a .finding for the defendant upon each of these questions; and the verdict can not, therefore, be disturbed as being contrary to evidence.
Judgment affirmed.
Wade, O. J., and Luke, J., concur.