to reverse his engine or stop the train, and if the cattle were killed by mistake of the engineer's judgment, the railroad company was not liable, provided the engineer was guided in his judgment by the experience of engineers. The court said that the fault in this instruction was that it did not demand of the engineer the exercise or possession of ordinary judgment, but, under the instruction, the simple mistake in judgment of the engineer, no matter how unreasonable or absurd that judgment may have been, provided it was guided by the experience of engineers, discharged the railroad company from liability.

And in Canadian P. R. Co. v. Eggleston (1905) 36 Can. S. C. 641, 3 Ann. Cas. 590, an action for injuries to a number of horses, where the trial judge found that the engineer, by exercising only reasonable and ordinary care, might have seen the horses on the track in time to have stopped the train so as to avoid injuring them, and that he was guilty of negligence either in not keeping a proper lookout ahead of his engine, or not stopping the train in time to prevent injury, and gave judgment against the railroad company, without stating upon which ground of negligence he based it, the appellate court said, in reversing the judgment, that, if it rested upon the first ground, it was clearly wrong, and that as to the second ground it was not sufficiently proved that, after the engineer had become aware of the presence of the animals upon the track, he was guilty of any negligence in not stopping the train in order to prevent doing them injury.

And in Sporle v. Grand Trunk P. R. Co. (1914) 7 Alberta L. R. 84, 17 D. L. R. 367, 17 Can. R. Cas. 71, 28 West. L. Rep. 271, 6 West. Week. Rep. 827, where it appeared that a mare and colt, after escaping from their pasture to the highway near a railway crossing, were frightened by a train so that they jumped the cattle guard and went upon the right of way, and, while there, were injured, not by the train which frightened them, but apparently by another train which subsequently passed, it was held that, assuming that the en

gineer of the train which frightened them saw the animals, it was not his duty to stop the train and turn the train crew from their ordinary duty of running and managing the train to drive the animals from the tracks.

And an engineer, upon discovering a dog upon the track, is not bound to stop the train. Wilson v. Wilmington & N. R. Co. (1856) 44 S. C. L. (10 Rich.) 52; Richardson v. Florida C. & P. R. Co. (1898) 55 S. C. 334, 33 S. E. 466.

As affected by duty to persons on train. See supra, I., for general rule.

Whether it is the duty of the railroad employees to check the speed of the train upon the discovery of animals upon the track depends upon the question whether the safety of the persons or property on the train, or the interests of the company, require that the speed be checked, where the animals are discovered in time to do so. first and paramount duty to be observed when danger is apprehended from such an obstruction is the safety of persons and property on the train, or otherwise lawfully on the track. Bemis v. Connecticut & P. River R. Co. (1869) 42 Vt. 375, 1 Am. Rep. 339 (bull).

The

Thus, in Chicago, R. I. & P. R. Co. v. Huggins (1902) 4 Ind. Terr. 194, 69 S. W. 845, where it was held that there was no proof of negligence to go to the jury in an action for the killing of cattle by a train, the court said that there was no obligation to stop or slacken the speed of the train upon the discovery of animals upon the track, where danger would likely result to the train or its passengers from an effort to do so, and that where it appeared that an effort to slacken the speed would not avoid the collision with the animals, the railroad company was excused from making the effort.

And in Denver & R. G. R. Co. v. Divelbiss (1899) 13 Colo. App. 304, 57 Pac. 743, where the railroad company was held not liable for the death of a cow killed by a fast passenger train, the engineer of which saw the cow when 150 feet away, just as it started to cross the track, but did not attempt to slacken the speed of the train, the

court said: "The first duty of a railroad company is to its passengers, and secondarily to its property, and lastly to the trespassing animal. Whenever

stock wanders on the track, gets in front of a moving railroad train, those in charge and control, and particularly the man at the throttle, are bound under the stress of the then situation to determine instantly what course to pursue to satisfy his first duty, which is the protection of the people on the train, and, second, the preservation of the property of the company. The course which his judgment, reasonably exercised, determines, is the one which he has the right to take. If it is his judgment, and that judgment is well based, and not attacked or overthrown by other evidence, that the lives of the passengers and the property of the company can be best protected and conserved by maintaining the speed of his train, killing the animal, and throwing it from the track, and that to do otherwise would endanger his passengers and his train, he has but discharged his duty to the passengers and his duty to the company, exercised ordinary care, and the company is not responsible. We concede that if it be possible for the engineer to stop the train, lessen its speed without danger to life or property, and thereby save the animal, such is his duty. The present was not such a case."

But where cattle are discovered upon the track, and checking the speed of the train, or stopping it, will avoid injury to them, and either can be done with safety to the passengers and freight, the railroad company is chargeable with negligence if it omits to do so. Pryor v. St. Louis, K. C. & N. R. Co. (1878) 69 Mo. 215.

And where stock is discovered upon a railroad track at a place inclosed with fences with gates therein as required by statute, and checking the speed of the train or stopping it would avoid injury to such stock, and either could be done with safety to property and persons on board the train, the railroad company is chargeable with negligence, if those in charge of the train omit to check or stop it. Warren

v. Chicago, M. & St. P. R. Co. (1894) 59 Mo. App. 367 (horse).

Animals running on track ahead of train.

The mere fact that an engineer sees horses on the track ahead in time to avoid killing them does not impose upon him the duty of beginning to stop the train; but where the horses are discovered to be in peril and likely to be struck by the train, if not scared away by the stock whistle, or saved by stopping the train, the duty arises,. on discovery of such peril, to whistle. or stop, and a failure to do either or both, if necessary, is negligence; and where the engineer observes the horses running wildly down the track, which is inclosed so that it may not be expedient to give the stock alarm, he should realize that the horses are in such peril as apparently to call for the stopping of the train. Nicholson v. Chicago, M. & St. P. R. Co. (1911) 155 Mo. App. 359, 137 S. W. 69.

And in Kansas City, Ft. S. & G. R. Co. v. Hines (1884) 32 Kan. 619, 5 Pac. 173, where it appeared that a cow was standing upon the railroad track in plain view of an approaching train for 800 feet, that the train could be stopped within 600 feet, but that it was not stopped or even slacked in motion and the whistle was not sounded, that the train moved on, and, when the engine approached to within 15 feet of the cow, she attempted to escape and ran along the track about 30 feet, when the engine overtook her, the jury found that the defendant railroad company was guilty of negligence in not giving the customary signals and in not slowing up the train; and it was held that the verdict of the jury was right. It was stated in this case that a court may take judicial notice that it is generally the duty of employees of a railroad company in charge of a moving train to sound the whistle whenever stock is on the track in front of the train, and also to slacken its speed, or even stop it, if necessary and practicable, to avoid coming in contact with the stock.

The judgment against the railroad company was affirmed in Gulf, C. & S.

F. R. Co. v. Ellis (1893) 4 C. C. A. 454, 10 U. S. App. 640, 54 Fed. 481, where it appeared that a filly had run upon the track ahead of the engine 200 yards or more before she was overtaken by the train and killed. The counsel for the railroad company contended that, as there was no evidence to show that the train could have been stopped in a distance of 200 yards, and as the distance in which a train can be stopped depends on the speed, the grade and condition of the track, and the number of cars and other conditions, as to which there was no evidence, the court should not undertake to say that a train of unknown speed, on a track which might have been slippery, with the engine pulling fifty cars, could have been stopped in 600 feet, but the court said that the question was not one of law, but one of fact for the jury, who doubtless brought to its determination common sense, and the knowledge common to all that the speed of a railroad train could ordinarily be slackened sufficiently, in a distance of 200 yards, to avoid running down a horse going at full speed on the track ahead of it, and that, if the special circumstances connected with the operation of the train in question were such as to make it an exception to the general rule and render it unsafe and impracticable to slacken its speed, or stop it, the burden was upon the railroad company to show such fact.

And in Burnham v. Chicago, B. & Q. R. Co. (1910) 87 Neb. 696, 127 N. W. 1075, where it appeared that the engineer saw a horse running down the track ahead of the train when about 80 rods from the horse, and he then started to give the stock alarm, and continued to do so until the horse was struck, but did not attempt to slacken the speed of the train, it was held that whether the engineer, by the exercise of ordinary care, could have stopped the train in time to avoid collision, after he saw the horse and blew the whistle to frighten it, was a question for the jury, and a judgment for the plaintiff was upheld.

And it was held in Lapine v. New Orleans, O. & G. W. R. Co. (1868) 20

La. Ann. 158, that where it appeared that the horses killed were running in front of the locomotive when struck, and that, if the speed of the train had been checked, instead of increased, as it was, they would have escaped, those in charge of the engine were guilty of such negligence as to render the railroad company liable.

A railroad company was held liable in St. Louis & F. R. Co. v. O'Laughlin (1892) 1 C. C. A. 311, 4 U. S. App. 283, 49 Fed. 440, where the engineer did not slow up a passenger train, upon seeing a bunch of mules running along the track in front of the train, until the train ran into and scattered the bunch and killed one of the mules, the witnesses all agreeing in saying that the engineer seemed to be trying to run the mules down.

And in an action for the killing of a heifer which, upon crossing a railroad, ran along the track before an approaching train, and fell into a cattle guard and was struck, where it appeared that it was seen by the engineer in time to have stopped the train, if he had considered it necessary, it was held in Grimmell v. Chicago & N. R. Co. (1887) 73 Iowa, 93, 34 N. W. 758, that the trial court properly refused instructions to the effect that, unless the jury found that the engineer, in the exercise of ordinary prudence, was bound to anticipate that the heifer would stay on the track, or run into the cattle guard, the verdict should be for the defendant, and that, if the natural thing for cattle on a crossing would be for them to leave the track instead of running into the cattle guards, the engineer was justified in thinking that the cattle would leave the track, and it was not negligence for him not to stop or reverse his engine sooner than he did. The court said that the vice of the instructions was that, while the engineer might anticipate that the animal would leave the track, he ought, as a reasonable man, to have apprehended that it might become frightened, and, in its fright, flee directly before the engine and run into the cattle guard; in other words, it was not enough for him to provide against what he believed would

happen, but it was his duty to provide against what he apprehended might happen.

As affected by distance.

Whether it is the duty of the railroad employees to check the speed of the train upon the discovery of animals upon the track depends upon the distance of the train from the animals at the time of their discovery, and whether the use of the usual means, namely, the bell and whistle, during the approach of the train, is likely to drive them off the track in time. Bemis v. Connecticut & P. Rivers R. Co. (1869) 42 Vt. 375, 1 Am. Rep. 339 (bull).

A railroad company is liable for the killing of a cow, where those in charge of the train saw it on the track, or coming upon it, in time to avoid killing it by either scaring it from the track by some alarm, or by stopping the engine before the collision, or by both methods, and they failed to do so. Martin v. Butler County R. Co. (1913) 175 Mo. App. 464, 161 S. W. 631.

And where those in charge of a train discovered a horse upon the track when the train was at such a distance that it might have been stopped by the use of the usual appliances had for that purpose, with safety to the train and the persons on it, in time to avoid striking it, and, after discovering it, such employees failed to make the necessary effort to stop the train, the railroad company is liable. Buckman v. Missouri, K. & T. R. Co. (1903) 100 Mo. App. 30, 73 S. W. 270.

Where there were seeming conflicts or contradictions as to material facts in the case, between the opinionative testimony of the defendant's engineer and the physical facts as disclosed by his testimony, and where the owner of the cow testified that the railroad track was straight for several hundred yards, and that the right of way of the railroad company at this point was such that the cow could have been readily seen for such distance by the engineer, and where it appeared from the testimony of the engineer, who sought to explain the killing and to show the absence of negligence, that he made no effort to stop the train,

because he thought it impossible to do so, and that, although he saw the cow when it was 50 or 60 yards away, it was so close that, in his judgment, it was impossible for him to do anything towards stopping the train before reaching the point where the cow was, and that he did not blow the whistle, or cut off the speed, or make any attempt to keep from hitting the cow, because, when he first saw the cow, he thought it useless to make any effort to keep from striking it,-it was held in Atlanta Coast Line R. Co. v. Chastain (1915) 15 Ga. App. 707, 84 S. E. 167, that it was for the jury to determine whether the explanation offered in behalf of the defendant completely rebutted the presumption of negligence created by the killing of the cow, and a judgment for plaintiff was sustained, the court saying that, in their opinion, the engineer should, at least, have made an effort to stop or slow up the train, even though he deemed it useless.

And it was held in Chicago, I. & L. R. Co. v. Ramsey (1907) 168 Ind. 390, 120 Am. St. Rep. 379, 81 N. E. 79, where the engineer of a train running from 25 to 30 miles an hour saw two steers upon the track when 400 feet away, that it was a question of fact whether he could have stopped the train with reasonable effort and safety and avoided the injury, and whether his failure to do so under the circumstances constituted negligence.

In Chicago & E. R. Co. v. Leiter (1915) 59 Ind. App. 212, 109 N. E. 213, where the facts sufficiently showed that the horses injured were seen on the track by those operating the train a sufficient length of time before the collision occurred to have slackened the speed of the train, or to have stopped it, without imperiling the persons or property intrusted to it for transportation, it was held that, under such a state of facts, it was for the jury to determine whether or not negligence existed on the part of the railroad company, or whether it was liable for the commission of a wilful injury, and the court further held, the jury having found for the owner of the horses, that it could not say that there

was no evidence to support such finding.

And it was held in Southern R. Co. v. Keel (1909) 7 Ga. App. 244, 66 S. E. 627, that where there was evidence that, although the dog of the plaintiff was upon the railroad track for about a minute before it was struck by the train, it was in full view of the engineer for half a mile, and the engineer continued the operation of the train at full speed, without sounding any alarm or making any other effort to avoid killing the dog, the jury was authorized to find that the killing was wanton or intentional.

And where cattle stood on the track in full view for a distance of more than half a mile, and the engineer made no effort to avoid striking them, never slackened the speed of the train, but rushed on at a rapid rate without any signals to give the alarm, it was gross negligence on his part not to have stopped the train in time to have avoided the injury, for which the railroad company will be held responsible, it being the plain duty of the engineer, when he saw the cattle on the track, to slacken the speed of the train in time to avoid a collision. Chicago & N. W. R. Co. v. Barrie (1870) 55 Ill. 226.

But where a cow is driven on the track by a dog, so near to the locomotive that the engineer could not avoid running over her, the railroad company is not liable; but if, running at the speed of about 8 or 10 miles per hour, with the cow in full view, standing on the track, while the train is going 200 yards, he deliberately runs over her, without any attempt to check the speed of the train, which might easily have been done, it is gross and wilful negligence, for which the company will be held responsible. Illinois C. R. Co. v. Wren (1867) 43 Ill. 77.

If cattle, when first discovered upon the track, are so near the engine that a collision cannot be prevented, no liability is incurred by the railroad company because of the engineer's failure to attempt to stop, since he is not required to attempt the impossible.

New Orleans & N. E. R. Co. v. Bourgeois (1888) 66 Miss. 3, 14 Am. St. Rep. 534, 5 So. 629.

And in the reported case (PAYNE V. HAMBLIN, ante, 146) the railroad company was held not negligent, so as to be liable for the killing of a mule by a passenger train, where the train was running at a proper speed, and could not be stopped in time to avoid striking the mule after it was seen by the engineer, who saw the mule as soon as the headlight of the engine enabled him to distinguish it upon the track.

Where live stock which were killed, not at a public road crossing, but some distance beyond, suddenly came on the track at a point so nearly in front of the locomotive that, notwithstanding all possible efforts, the progress of the the train could not be arrested before the stock was struck, the railroad company is not liable, although it appears that, in approaching the crossing, the engineer did not observe the requirements of law as to checking the speed of the train, his failure so to do not being the proximate cause of the injury. Central of Georgia R. Co. v. Neidlinger (1900) 110 Ga. 329, 35 S. E. 364 (cow); Central of Georgia R. Co. v. Duggan (1905) 124 Ga. 493, 52 S. E. 768.

And in Mobile & O. R. Co. v. Morrow (1906) 30 Ky. L. Rep. 83, 97 S. W. 389, an action for the value of two horses killed by a train, holding that a verdict for plaintiff was against the evidence, where the only witness was the engineer, who testified that the horses leaped suddenly upon the track in front of the engine, and that he could not avoid striking them, the court said that, if the horses were on the track and seen by the engineer a quarter of a mile before he struck them, it was negligence not to have stopped or attempted to have stopped the train to avoid the accident, but if the horses came suddenly on the track, immediately in front of the engine, the railroad company was not liable, as in the exercise of ordinary care the train could not have been stopped in time to avoid killing them.