1. The general rule, that it is error for the trial judge to state to the jury an allegation of negligence contained in the plaintiff’s petition where the allegation is not sustained by any evidence, does not apply in an action for damages against a railroad company for a homicide, where the evidence shows that homicide was caused by the running of the defendant’s cars; for in such a case the presumption arises that the defendant was negligent in each and every particular alleged in the plaintiff’s declaration, and primarily this presumption is sufficient to prove the negligence alleged. In such a case it is not error for the court, in charging the jury, to refer to all the acts of negligence alleged, although the allegations as to some of them may not be sustained by any evidence and may even be disproved by undisputed evidence. See, in this
2. Complaint is made of the following charge: “ This presumption of negligence arising from this code-section (2780) which I have read to you is not a conclusive presumption. It simply puts the burden upon the defendant of showing that its agents and employees were in the exercise of all ordinary care and diligence in and about the transaction which the plaintiff claims brought about her husband’s death.” (Italics ours.) It.was contended that the court erred in using the words “ in and about the transaction,” because the burden that the law placed upon the defendant was merely that of disproving the negligence actually charged in the plaintiff’s petition.
This charge was substantially correct, and it does not appear that it could have misled the jury or injured the defendant. See, in this connection, Jackson v. Georgia Railroad & Banking Co., 7 Ga. App. 644 (1), (67 S. E. 898), and Georgia Southern &c. Ry. Co. v. Thornton, 144 Ga. 481 (2) (87 S. E. 388). This is especially true when this portion of the charge is considered in the light of the entire charge.
3. Exception is taken to the following excerpt from .the charge of the court: “ On that subject I charge you that the existence of a fact testified to by one positive witness is to be believed rather than that such fact did not exist because many witnesses who had the same opportunity of observation swear that they did not know or see of its having transpired, provided other things are equal 'and the witnesses are of equal credibility.” It is insisted by the movant that the words “ provided other things are equal,” as used in this excerpt from the charge, were error. There is no merit in this exception. Substantially the same charge, including the words objected to, was approved by this court in Benton v. State, 3 Ga. App. 453, 455 (60 S. E. 116).
4. Under the facts of the case, the court did not err in refusing the request to charge set forth in the 12th special ground of the motion for a new trial.
5. There is no substantial merit in either the 14th qr the 15th special grounds of the motion for a new trial.
The court did not err, for any reason assigned, in overruling the motion for a new trial.
Judgment affirmed.