The appellee obtained judgment ag'ainst the railway for the value of a cow which was killed by the company’s moving train. The plaintiff proved the killing, and rested upon the presumption of negligence which the statute raises against the company from that fact. The only question presented by the appeal is, whether the court shall adjudge that the-proof adduced by the company overcame the plaintiff’s. prima facie case.
We quote from the appellant’s abstract a statement of the material part of the testimony for the defendant :: “The defendant took the depositions of all of the engineers running trains on the daythe stock was killed, showing that it must be the animal killed by Charles Kelly, engineer of engine No. 5.” “Kelly testified: On the 5th of July, 1890, a short distance west of Forrest City, at mile post 46, I struck a cow or steer with the engine. I was pulling six coaches down grade at the rate of thirty-five miles an hour. The animal came upon the track on the fireman’s side, and tried to cross the track, and the engine hit it. I did not have time to do anything to prevent striking it after I saw it. The 'track was fenced at that point. The dump is ten or twelve feet high, and from my side of the engine, and the nearness of the cow when she came upon the dump, and the speed the train was running at, it was impossible, for want of time, to do anything, after I saw the cow, to keep from hitting it.”
■ The case arose prior to the passage of the late statute defining the duties of railroads in regard to stock.*
Conceding that the testimony establishes that it was Kelly’s engine that killed the cow in suit, and that he performed his whole duty, we cannot adjudge that the company was not at fault.
Kelly, the engineer, appears to lay stress upon the fact that the cow came upon the track on the fireman’s side — that is, on the side upon which the fireman maintained watch. But no account is given of the fireman’s conduct at the time of the injury. Nor aught that appears, he may have discovered the animal at a distance from the track when its actions indicated a determination to enter upon it, and neglected to give the engineer warning or to take any precaution to prevent the injury which ensued. In that event the company would be guilty of negligence. Under the statute, the burden was upon the company to prove due care. Railway Co. v. Taylor, ante, p. 136. But, as the proof shows that negligence could be imputed to it from the acts or omissions of either of two servants, it manifestly did not 'exonorate itself by proving that one only had exercised diligence. The jury was at liberty therefore to determine that the frima facie case of negligence established by the plaintiff had not been overcome.
Affirm.
Acts 1891, p. 213.