Savannah, Griffin & North Alabama Railroad v. George & Hartnett , 57 Ga. 164 ( 1876 )

Warner, Chief Justice.

The plaintiffs brought their action against the defendant to recover damages for the alleged killing of a certain brown mare by the careless and negligent running of its trains upon its road. On the trial of the case the jury found a verdict in favor of the plaintiffs for the sum of $100 00. A motion for a new trial was made on various grounds, which was overruled by the court, and the defendants excepted.

1. The main question on the trial was, whether the plaintiffs’ mare was killed by the defendant’s railroad train or not killed by it, and in relation to that point in the case the evidence was conflicting. The jury, as it was their province to do under the evidence, found a verdict in favor of the plaintiffs, and there is sufficient, evidence in the record to sustain it if they believed the plaintiffs’ witnesses, whiph was a question for them to determine, and not a question for the court to decide.

2. As to the newly discovered evidence, the main fact sought to be proved by it appears to have been known to the defendant’s agent before the trial, and by the exercise of proper diligence could have been had at the trial, even if that evidence was not merely cumulative. We find no legal error in overruling the motion for a new trial on the statements of facts disclosed in the record.

Let the judgment of the court below be affirmed.