Per Curiam.
This was an action brought before a justice
of the peace to recover damages of the defendant, a railroad company, for killing a cow, the property of the plaintiff. On a trial in the circuit court, to which the cause was appealed, plaintiff recovered a judgment, from which defendant below appeals to this court.
The claim of the plaintiff is based upon the alleged failure of appellant to ring a bell or sound a whistle, and that the train was run at a higher rate of speed than was allowed by the ordinances of the village in which the cow was killed.
The evidence shows that the cow was killed near a public crossing in the village of Jewett, and it leaves but little doubt that the train was running much faster than was allowed by the ordinance of the village, and that no bell was rung or whistle sounded. These facts of themselves make the corporation prima facie liable to the owner of the cow for the injury, and the Jaw presumes the same to have been done by the negligence of the company. Rev. Stat. 1874, Chap. 114, Sec. 62.
The only defense was, that the' cow came upon the track about one hundred yards ahead of the train, and it was not in the power of those in charge of the engine to stop the same in time to avoid the injury.
The train was running in total disregard of the law, and to overcome the liability created by the statute under such circumstances, the preponderance of the evidence should show that the injury was not the result of the wrongful act of the company. This, we think, it wholly fails to do.
We do not regard some of the instructions as accurate, but it seems to us that substantial justice has been done, and that •a new trial would result in the same judgment.
The ordinance was sufficiently proved to admit it in evidence, and upon the whole case we think the judgment should be affirmed.
Judgment affirmed.