Gainesville, Jefferson & Southern Railroad v. Wall

This case was a certiorari to grant a new trial because the verdict of a jury in a justice’s court was without evi*283dence to support it. It appears from the record that the plaintiff in error ran over a cow and killed her, belonging to defendant, and that the cow was worth as much as the jurv found by their verdict. The only witness who testified in behalf of the plaintiff in error was the engineer, and his testimony showed that the railroad company had used all ordinary and reasonable care and diligence, but the fireman, who is always on the engine with the engineer, did not testify, and his absence was not accounted for. The court overruled the certiorari and refused the new trial.

This court has held, in 64 Ga., 610, that the railroad company should produce all the witnesses present to show that the company was not at fault.

The absence of a material witness when an injury occurred, not accounted for, might authorize the jury to infer against the railroad company; they might believe that, if the fireman had been produced and had testified, his testimony would have shown negligence on the part of the railroad

This is-a small case, and we ara not inclined to interfere with the discretion of the court in refusing to award a new trial. See the case of East Tennessee, Virginia & Ga. Railroad vs. Prather et al., 14 Ga., 838.

Judgment affirmed.