Legare v. Atlantic Coast Line R. R.

February 15, 1910. The opinion of the Court was delivered by This is an appeal from the following order of his Honor, the Circuit Judge:

"The above six (6) cases were heard by me at the same time by consent. They were all appeals from magistrate court, and involved substantially the same questions. The defendant claims that the only testimony on part of plaintiffs was that stock killed was on defendant's railroad, and the presumption of negligence under Danner's case and the cases following it, and that evidence on the part of defendant not only rebutted and overcame this presumption, but that no other inference could be drawn from the testimony and magistrate erred in not directing verdicts for defendant.

"I cannot sustain this contention; it was a question of fact for the jury, and the magistrate committed no error in leaving it to them. Still I am of opinion that new trials should be granted in each case, as verdicts are wrong in that the weight of testimony preponderated in favor of defendant.

"It is therefore ordered and adjudged that a new trial be granted in each case."

The cases of Pace Co. v. R.R., 83 S.C. 33, and Des-Champs v. R.R., 83 S.C. 192, show that the order is not appealable. Therefore, it would not be proper for this Court to consider the exceptions.

Appeal dismissed.