(concurring specially.) The judgment of the county court should be reversed. Its ruling on defendant’s motion to direct a verdict was an error at law, occurring at the trial, and duly excepted to, which may be reviewed in this court when presented by a proper bill of exceptions or statement, on appeal from the judgment alone. Mercantile Co. v. Faris, 5 S. D. 348, 58 N. W. 813; Id. 6 S. D. 113, 60 N. W. 403. This case differs from Sheldon v. Railway Co., 6 S. D. 606, 62 N. W. 955, and Lighthouse v. Railway Co., 3 S. D. 518, 54 N. W. 320, in that there is no evidence whatever, direct or circumstantial, which in any manner conflicts with or tends to contradict the engineer’s positive statement that the train could not have been stopped after the injured animal was discovered, and before it was thrown from the track. It comes clearly within the rules announced in Hebron v. Railway Co., 4 S. D. 538, 57 N. W. 494, and Harrison v. Railway Co., 6 S. D. 100, 60 N. W. 405. Regarding the question- of contributory negligence as eliminated by the exceptionally clear and able charge of the learned county judge, I dissent from the conclusions of my associates upon that subject.