(after stating the facts.) The prima facie case of negligence resulting from the killing was not overcome by the proof of the engineer, nor the witness for plaintiff who saw the killing. The track was straight, and the engine had a fine head light. The engineer says he saw the cow step on the track in front of the engine, but he does not say that he did not see her upon the right of way, or near to the track before she came upon the same. If he did see the cow, and she was so near as to indicate danger to her, he was negligent in not sounding the alarm, slowing up, or doing whatever else was necessary to frighten the cow from the track. If he could have seen her before she came upon the track in time by the use of the stock alarm, or other necessary precautions, in the exercise of ordinary care, to have avoided injuring her, and failed to do so, he was still guilty of negligence. These propositions are not rebutted by his evidence, nor by the plaintiff's witness, because she says she was not looking for the cow. For aught that appears to the contrary, the cow was or might have been seen by the engineer before she came upon the track in time to have avoided killing her by the use of the ordinary precautions.
Affirmed.