Jackson, Chief Justice.
The presumption fixed by law is that the agents of the company did not exercise all ordinary and reasonable care to save the life of the mule. Code, §3033.
Is it made to appear that the agents of the company have exercised all ordinary and reasonable care ? Two agents are in position to see stock on the track ordinarily, the engineer and fireman. Only the engineer was sworn. True, the engineer says that the fireman was engaged with firing the engine at the time; but it would have been better had he been called to swear for himself. It is a troublesome presumption to be overcome, and to do it successfully, it is better that the agents of the company stationed on the engine should be all called on such a catastrophe.
There seems to have been a difference of opinion about the distance the mule could have been seen; and while the engineer had much the advantage of position to judge how far he could see that night, over those who reviewed the scene next day, yet the jury has the right and duty of weighing all the evidence.
Besides, the engineer testified that he reversed the engine and blew on brakes; and a witness testified that the engineer told him that he did neither, he was too close on the mule.
Considering the failure to swear the fireman, the difference of opinion about the distance the mule might have been seen if the agents of the company had been on the alert, and the contradictory statement of the engineer on the stand and off it, according to what the witness said he told him, we cannot say that the court abused its discretion in denying the new trial.
Judgment affirmed.