* Headnotes 1. Railroads, 33 Cyc., p. 1277; 2. Railroads, 33 Cyc., p. 1313. The appellee sued the appellant in the justice of the peace court for one hundred and sixty-five dollars for the wrongful killing of one cow. There was a judgment for said amount in the justice court, and the case was appealed to the circuit court, where the case was again tried and verdict rendered for sixty-five dollars from which judgment the defendant appeals.
The cow was killed near mile post No. 99 in Carroll county. A witness for the plaintiff testified to seeing the cow killed by a train traveling west about two o'clock p.m. He stated that the whistle blew, but that the train did not slow down and that the track at the point where the accident occurred was visible for about four *Page 299 hundred yards from the east. The train crew of this train was not introduced by the defendant, but a train crew of a train traveling toward the east testified that they struck a cow near the said mile post on the said day, and testified that they were approaching the scene of the accident on a curve, and that on account of the curve the engineer could not see the cow until too close to the place of accident to stop the train; that when he saw the cow she was crossing the track; that he blew the whistle, put on the brakes, and did all that could be done to prevent the injury. He further testified that the fireman was busy with his duties firing the locomotive, but that the fireman could have seen the cow from his side of the locomotive had not his duties occupied his attention. The fireman testified to like effect. They both testified that after they discovered the cow they did all that could be done to prevent the injury.
The plaintiff obtained an instruction on the prima-facie statute, while the defendant obtained an instruction that theprima-facie statute was not applicable, and that the facts had been disclosed in evidence by witnesses. The defendant requested and was refused an instruction that if the jury believed from the evidence introduced that plaintiff's cow was killed by an east-bound train as testified to by the witnesses for the railroad company, then it was the duty of the jury to return a verdict for the defendant. The defendant also requested a peremptory instruction which was refused.
A number of assignments of error have been argued; but we think there is no merit in any of them, except the refusing of the instruction that, if the jury believed the cow was killed by the train traveling east, as testified to by the witnesses for the defendant, they should find for the defendant.
The testimony of these witnesses shows that they did all they could do after discovering the cow on the right of way to prevent the injury, and that the train was in good condition, properly equipped, and that the fireman was engaged about his duties, and that it was necessary *Page 300 for him to be so engaged to properly operate the train at the particular place.
If the injury was inflicted by the east-bound train, the defendant produced the facts which would exculpate it from liability; but if the injury was inflicted by the west-bound-train, on the proof in this record there would be liability, and the prima-facie statute would be applicable, as the employees of the railroad company operating the train did not testify. The application of the prima-facie statute should have been limited to the train going west and should not have been applied to the train going east under the facts in this record.
The judgment will therefore be reversed, and the case remanded for a new trial.
Reversed and remanded.