There were in proof certain circumstances tending to contradict the evidence in behalf of the defendant that the horse came suddenly upon the track and its killing was unavoidable, notwithstanding the exercise by the defendant of “all ordinary and reasonable care and diligence when the injury occurred.” Southern Railway Co. v. Early, 105 Ga. 512 (31 S. E. 187). Whether the presumption of negligence on the part of the defendant, which arose upon proof of the killing of the horse by the running of its train, was overcome was a question for solution by the jury, and, in the absence of any assignment of error except as to the sufficiency of the evidence to authorize the verdict, and the equivalent assignment that the verdict was contrary to *11law, because without evidence to support it, the judge of the superior court did not err in refusing to sanction the certiorari.
Decided April 17, 1916.
Rehearing denied May 31, 1916.
Petition for certiorari; from Colquitt superior court — Judge Thomas. September 13, 1915.
Walters & Bedfearn> for plaintiff in error..
James L. Dowling, J. B. Bussell, contra.
Judgment affirmed.
Bussell, O. J., absent.