This being' an action against a railway company for the negligent killing of a mule by one of its locomotives, and tlie uncontradicted evidence being that the mule suddenly came upon the track in front of the engine from behind a house, where it could, not have been seen, and that it was impossible to have stopped the train after the mule was *840seen, the statutory presumption of negligence, arising from proof of the killing, was overcome, and there could not be a recovery. Atlantic Coast Line R. Co. v. Whitaker, 10 Ga. App. 207 (73 S. E. 34).

Judgment reversed.

dissenting. In my opinion the trial judge did not err in re-

fusing a new trial; for the reason that the jury was authorized, by the circumstances detailed by the plaintiff’s witnesses, and which illustrated the killing, to disregard the testimony in behalf of the defendant.