While it was not shown with absolute certainty that the deceased was killed by the defendant’s train, there was ample evidence to warrant the jury in finding that such was the fact. This being so, and the plaintiffs having a legal right to sue for the homicide of their father, they were, in *63view of the presumption of negligence arising against the company under section 3033 of the code, entitled to have their case passed upon by the jury, unless there were other facts in evidence by which the legal presumption was fully rebutted. There is no law requiring a railroad company to introduce evidence of its own, for the purpose of overcoming the presumption of negligence imposed upon it by the statute. It may rely solely upon the evidence introduced by the plaintiff; and if that evidence does remove the presumption, it will not be necessary for the company to offer any further defense. In the present case, the defendant introduced no evidence at all, but stood upon the proposition that the evidence for the plaintiffs affirmatively vindicated the company’s diligence, and demonstrated its non-liability.
It appears from the testimony, that the deceased came to his death “upon á dark, drizzling, rainy night,” at a point on the railroad track which was a considerable distance from any public crossing; and that upon such a night, a good headlight would not disclose an object on the track at a greater distance than from fifty to seventy-five yards. The train by which the deceased was presumably killed ■ was running between twenty-five and thirty miles an hour. There are at least two particulars in which the jury would have been warranted in finding that the company was wanting in the proper diligence. It does not affirmatively appear that the locomotive was in fact supplied with a lighted headlight, and the evidence does not show that the train, when running at the rate of speed testified to, could not have been stopped, or its speed so reduced within the above mentioned distance as to have prevented the homicide.
Whether there was, or was not, any duty of looking out for persons who might happen to be on the track at the place where the homicide occurred, it was certainly incumbent on the company’s servants in charge of the train to *64stop it, if possible, after discovering tbe deceased in bis buggy in front of tbe locomotive. Tbe evidence does not negative tbe inference that be was so discovered when tbe locomotive bad approached witbin a distance of seventy-five yards of bim. "With a beadligbt, tbe evidence shows be might have been seen for that distance; and if in fact seen, and it was possible either to stop tbe train, or to so reduce its speed as to avoid tbe collision entirely, or to render tbe consequences of it less disastrous, a verdict finding that tbe company’s servants were negligent in omitting so to do could have been properly rendered. If, as matter of fact, it was impossible witbin tbe distance stated either to stop tbe train or to so check its speed as to prevent a fatal collision, tbe presence or absence of tbe beadligbt would seem to be immaterial; but on tbe theory that its light would disclose tbe presence of tbe deceased on tbe track in time to enable tbe company’s servants to avoid injuring bim, a jury would be authorized to find that tbe failure to have a lighted beadligbt was negligent.
Prom tbe foregoing it will be seen that tbe plaintiff’s evidence did not necessarily make out a case of complete diligence on tbe part of tbe railroad company. Morally speaking, we might be at liberty to presume that tbe locomotive was supplied with a headlight, and also, that witbin a distance of seventy-five yards, tbe “cannon-ball” train could not have been stopped or its speed appreciably reduced. In all probability, this was tbe real truth of tbe matter; but we cannot judicially so assume, and are constrained to and tbe case back in order that these questions may be passed upon by tbe jury.
In our consultation upon this case, two other questions were discussed. They were: (1) whether or not tbe company’s servants were under any duty of looking out for human beings upon its track' at tbe point where tbe homicide occurred; and (2) if not, whether, in tbe absence of actual knowledge of tbe presence of tbe deceased upon *65the track in a situation of peril, the company, relatively to him, was'under any duty of checking or regulating the speed of its train. As it was not absolutely necessary to definitely decide these questions, and we were not entirely agreed in our views concerning the same, they.are left open, as it may transpire that a full development of all the facts will eliminate both questions from the case.
Judgment reversed.