the court said that as to such animals near railroad tracks, at places other than the crossings of public highways, the railroad company is under no obligation to slacken the speed of its train.

And where cattle are standing or moving about near a railroad track at a point not at a crossing, those in charge of an approaching train are not required to slacken its speed, and no negligence is chargeable against the railroad company for their failure to slacken the speed of the train, unless the cattle are upon the track or are making such movements thereto as to induce a reasonable person to apprehend that they are about to enter upon the track, and then, and not until then, it becomes the duty of those in charge of the train to endeavor to stop it so as to avoid a collision, having regard, in checking its speed, to its safety and that of the passengers. Grant v. Hannibal & St. J. R. Co. (1887) 25 Mo. App. 227.

And in Gordon v. Louisville, St. L. & T. R. Co. (1895) 16 Ky. L. Rep. 713, 29 S. W. 321, an action to recover for the value of a colt struck by a train, where the facts were not given, it was held that the law of the case was correctly presented by an instruction to the effect that it was not the duty of the engineer to stop or check the train before the colt got upon the track, and that his failure to do so was not negligence.

But where those in charge of a train discover a cow standing near the track, or in a situation suggesting the possibility of its getting on the track, through fright or otherwise, and suffering injury from the train, it is their duty to stop the engine or slacken its speed, if the safety of the animal requires such action. Testerman v. Hines (1921) 88 W. Va. 547, 107 S. E. 201.

And the court, in Elmsley v. Georgia P. R. Co. (1891) Miss. - 10 So. 41, held erroneous an instruction to the effect that it is not the duty of an engineer to stop his train when he sees live stock upon the right of way, and that unless there is a reasonable probability of the train striking such

stock, it is his duty to make schedule time, using only reasonable diligence to avoid striking animals upon the track. The reason given for the error in this instruction was that it relieved the railroad company of liability for the injury inflicted, if, at the time the engineer attempted to run by the mule of plaintiff, there was a reasonable probability that it would not be struck by the train, the court saying that the servants of the railroad company may not speculate upon the probable consequences of an act apparently dangerous, and that it could not be said that the chances were great that the mule would quietly stand upon the narrow strip of land while the train ran by, and would not change its position and collide with the train.

And it was held in Alabama G. S. R. Co. v. Mims (1922) — Ala. 92 So. 548, to be a question for the jury whether or not the railroad company overcame plaintiff's prima facie case of liability for the death of a cow, where the engineer testified that he resorted to all proper means to stop the train before striking the cow, and that the engine was properly equipped, but there were conflicting inferences arising from the failure of other witnesses to hear anything to indicate the slackening of the speed of the train, and from the indications of the great force with which the cow was struck.

Animal grazing or drinking.

The mere fact that the engineer sees an animal near the track does not require him to check the speed of his train, unless there is something to indicate that the animal may go upon the track; and it was therefore held in Denver & R. G. R. Co. v. Bird (1915) 60 Colo. 259, 152 Pac. 911, that where a cow was near the track and eating from a car on a sidetrack, and made no move toward leaving that position until the approaching engine of a passenger train was within a distance of from 150 to 300 feet of her, and then started to run across the track when it was too late to stop the train with safety, the engineer was not under the duty of checking the speed of the train.

And where an engineer, at a distance within which he could have stopped the train, saw cattle upon an open village common, where they were accustomed to graze, some lying down and some standing up and eating, but none nearer than 15 feet to the railroad track, and the cow which was struck came upon the track 1 or 2 rods in advance of the locomotive, so that it was physically impossible to stop the train and avoid the collision, it was not negligence on his part not to slow up the train, where he had frequently seen the cattle feeding upon the common, and had passed them without accident or apparent danger, and had no reason to anticipate the injury which ensued. Chicago, B. & Q. R. Co. v. Bradfield (1872) 63 III. 220.

And where a horse was grazing quietly near the railroad until a train was nearly opposite, when it suddenly came upon the track in front of the engine and was killed, the railroad company was not liable, because it was not the duty of the engineer to stop his train upon seeing the horse grazing near the track, as he could not anticipate that the horse would suddenly come upon the track. Peoria, P. & J. R. Co. v. Champ (1874) 75 Ill. 577.

It was held in Louisville & N. R. Co. v. Carroll (1893) 15 Ky. L. Rep. 268, an action for the death of a horse from being struck by a train, that it was not the duty of the engineer to stop the train simply because he saw it grazing near the track.

And it was held in Cincinnati, N. O. & T. P. R. Co. v. Graves (1887) 9 Ky. L. Rep. 535, that where an engineer saw a mare about 400 or 500 yards ahead of the train, quietly grazing 25 or 30 feet from the track, without taking any notice of the train until it was within 30 or 40 feet of her, when she suddenly tried to cross the track before the train and was killed, the engineer was under no duty to attempt to stop the train when it was impossible to do so without striking the

mare.

And in Yazoo & M. Valley R. Co. v. Brumfield (1887) 64 Miss. 637, 1 So. 905, where it appeared that two mules.

were feeding in a depression near the tracks in their pasture, through which the railroad ran, and that, as a train emerged from a cut, the mules were startled and started along and towards the track ahead of the engine, and that the engineer sounded the cattle alarm, and set the brakes, and did all in his power to avert the collision,-the mules having got on the track ahead of the train,—but failed, and the train struck the mules on a trestle and killed one, and the other jumped or was knocked from the tracks and killed, the court held erroneous an instruction to the effect that, if the mules ran along the track and on the roadbed for a distance of 325 yards, and the engineer saw them at a distance of 600 or 700 yards, and the train could have been stopped at any point short of the place of the collision, the railroad company was liable, and said in this connection: "It is not clear what proposition this instruction contains. If it announces merely that the train should have been stopped, if it could be, after the mules got on the track and showed a disposition to keep on it, it is correct. If it contains the proposition that it was the duty of the engineer to stop the train, or try to do it, as soon as he saw the mules in the neighborhood of the roadbed, it is not correct; and this seems to be the intent of the instruction, for otherwise the distance at which the mules might have been seen was unimportant. It is not the duty of the engineer to stop his train until there is an apparent necessity for it. Ordinarily, the discovery of animals or persons near the road does not require the stopping of the train. That should occur only when it seems to be necessary to avoid collision. Unless appearances reasonably indicate danger of the object going upon the track, an effort to stop is not required; but, when existing conditions suggest the danger, regard should be had to them, and failure in this will constitute negligence, of all which a jury is to judge under proper directions, and should not be told that, as matter of law, a failure to stop in 325 yards, or after seeing the mules

for 600 or 700 yards, was sufficient to carry the verdict."

Upon a later appeal of the same case in (1888) Miss., 4 So. 341, the court held erroneous an instruction to the effect that, if the train could have been stopped, in the exercise of reasonable care, after the mules were in sight near the tracks, the jury should award damages to the plaintiff; and also held erroneous a refusal to instruct to the effect that, if the mules were in a depression below the tracks, from which the tracks were not easily accessible to the mules, it was not necessarily the duty of the engineer to stop the train as soon as the mules were seen, but it was a question of fact for the jury; but, when the mules indicated their purpose to go on the track, then it was the duty of the engineer to stop the train-the court saying that the principles applicable to the case were settled upon the former appeal.

An engineer cannot be held to anticipate that a horse drinking at a pond about 12 feet from the railroad track would run up the railroad embankment of from 10 to 12 feet high, upon the track, in front of a moving train, and therefore he was not under the duty of slackening speed or stopping the train upon discovering the horse drinking at the pond. Yazoo & M. Valley R. Co. v. Whittington (1896) 74 Miss. 410, 21 So. 249, 1 Am. Neg. Rep. 286.

But an engineer, upon discovering a horse feeding in a ditch some 3 feet from the track, should slacken the speed of the train, so as to be able to avoid striking the horse if, in its fright, it should suddenly jump upon the track, and the failure of the engineer to slacken the speed of the train until the horse gets upon the track is negligence, rendering the railroad company liable for the injury to the horse. Snowden v. Norfolk Southern R. Co. (1886) 95 N. C. 93.

And in Denver & R. G. R. Co. v. Nye (1897) 9 Colo. App. 94, 47 Pac. 654, 1 Am. Neg. Rep. 12, where the engineer, when three quarters of a mile away, saw a herd of horses grazing within defendant's right of way, and

did not blow the whistle or slow down, but increased the speed and attempted to slip by them without frightening them, but the horses ran across the track in front of the engine and some of them were injured, the court held that the question of negligence was one of fact, and upheld a finding of the jury that the engineer was negligent, saying: "Whether the course pursued by the engineer was prudent of reckless can only be determined by those more familiar with the management of trains than I am. The testimony of the engineer clearly shows an admitted error in judgment. The view was not obstructed. He saw the horses three fourths of a mile,-were known to be within the fences on either side. What, under the circumstances, a band of horses would do, could not be anticipated. Not knowing what they would do, it seems that common prudence would require that in any attempt to pass them the train would be 'slowed down,' and under perfect control, so it could at once be stopped in case the horses should attempt, as they did, to cross ahead of the engine. The evidence shows such lack of control that, after the horses got upon the track, they ran for some distance in advance, until a bridge was encountered, before the collision occurred, showing that the train was not so handled as to render the accident unavoidable. Whether through error of judgment or recklessness, the result was the same, and it was fortunate that there was not a loss of human, as well as animal, life. The conditions were such that the engineer should not have tried an experiment."

And in Edson v. Central R. Co. (1874) 40 Iowa, 47, where it appeared that the cow that was struck was seen in a cut about a quarter of a mile away when the train rounded a curve, that the engineer called the attention of the fireman to the cow, which was feeding 2 yards from the track, and that the train was moving at an unusual speed, and no whistle was sounded and no effort was made to check its speed, or to get the train under control, it was held to be a ques

tion for the jury whether, under all the circumstances, it was an exercise of reasonable care and prudence, seeing the cow ahead in a cut, feeding within 2 yards of the track, and thus apparently not aware of the presence of the train, to approach at an unusually high rate of speed without giving alarm, or taking measures to place the speed of the train under control. The court further held that they were not called upon to interfere with a finding on such question against the railroad company.

And where cattle are seen feeding near the tracks on each side thereof, and some are in the act of crossing it, it is the duty of the engineer to reduce the speed of the train so as to prepare for an emergency, and be able to stop, if necessary, until the danger is passed. Aycock v. W. & W. R. Co. (1858) 51 N. C. (6 Jones, L.) 231. Animal approaching track.

It is the duty of an engineer when he sees live stock running toward the track to obtain such control of his train as to be able to prevent a collision, if possible, by stopping when necessary. C. O. & S. W. R. Co. v. Etheridge (1885) 7 Ky. L. Rep. 102 (abstract).

And the statutory presumption of negligence upon the part of the railroad company, where live stock is killed by a train, was held not to be rebutted in St. Louis, I. M. & S. R. Co. v. Hagan (1883) 42 Ark. 122, where it appeared that the engineer of a passenger train which killed a mule in daylight saw it 150 yards ahead as it was approaching the track, but did not sound the alarm whistle until the mule got upon the track, or make any effort to stop or check the speed of the train, although he had atmospheric brakes at his command, giving as an excuse for his failure that, after the mule came upon the track, the distance was too short to bring the train to a full stop before striking it, and that to lessen the velocity of the train would have endangered the safety of passengers by increasing the liability of the cars to leave the tracks when the inevitable collision would take place, the court saying: "We can un

derstand that live stock may spring upon the track so near ahead of a rapidly advancing engine that it would be useless, and might be dangerous, to check up. Under such circumstances, all the momentum which the train has acquired is needed to brush aside the obstacle with as little recoil as possible. But the jury might fairly have inferred, from the engineer's own version of the matter, that proper caution had not been used. Although he saw the mule approaching the track, he did not whistle until it was actually upon the track, or put forth any effort to slacken speed and get his train under control."

And where there was apparent contradiction as to material facts in the testimony of the defendant's fireman, by which it sought to explain the killing of a cow and to show an absence of negligence, and where, from this testimony, it appeared that no effort was made to stop the train, no brakes were applied, no bell was rung or whistle blown (because he did not think it necessary), and nothing was done to prevent the accident, though the animal was first seen by him when 25 or 30 feet distant from the train, coming from behind cars standing on the third or fourth track from the track on which the train was running, and the bell cord was in touch of both the engineer and the fireman, and he testified that he did not have time, from the time he saw the cow until she was hit, to tell the engineer to stop, or to apply the brakes, and the engineer testified that, although he was looking from his proper place in the cab on the right side of the engine, he failed to see the cow, and did not even know the train had struck the cow until the fireman afterwards told him, it was held in Western & A. R. Co. v. Smith (1914) 15 Ga. App. 289, 82 S. E. 906, that it was for the jury to determine whether or not 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 upheld.

But where an engineer first saw a colt going toward the track about 150

feet in front of the train, and too late to stop the train and prevent striking it, his failure to stop or check the speed of the train was not negligence so as to render the railroad company liable. Wallace v. Oregon Short Line R. Co. (1909) 16 Idaho, 103, 100 Pac. 904.

And an engineer is not required to slacken the speed of his train upon discovering a mare standing still about 20 feet from the track, and, where the train is only 150 feet away and it is impossible to stop it when the mare starts toward the track, the failure of the engineer to attempt to stop the train does not render the railroad company liable. Howard v. Payne (1921) Mo. App., 230 S. W. 651. And where it appeared that, after a passenger train had passed a flag station, the fireman looked back to see if there were any signals given to stop the train, and for the first time saw a bull which was walking toward the train, and just after he saw it, it got close enough for the steps of a coach to hit it, and it would not have been possible to have stopped the train after the fireman first saw the bull, it was held in Davis v. Porter (1922) Ark., 240 S. W. 1077, that, as the public interest requires that trains be run on time and that railroads despatch their business promptly, it was. not necessary, under the circumstances, to stop the train or to slacken its speed.

Animal running alongside track.

See also St. Louis-San Francisco R. Co. v. Pace (1921) 151 Ark. 159, 235 S. W. 416, infra, II. c.

The railroad company was held liable for the death of horses in Toledo, W. & W. R. Co. v. Milligan (1876) 52 Ind. 505, where it appeared that the horses were discovered about half a mile from a railroad bridge, that they ran by the side of the track until they got within about 200 yards of the bridge, when, by reason of an embankment, they were forced on the track and were driven into the bridge and were struck by the engine and knocked off, the engineer, instead of stopping his train or diminishing its

speed, having put on additional steam and increased its speed.

At crossing.

An engineer is not obliged to slacken the speed of the train upon observing cattle in the highway near the track, but only when, in the exercise of due caution, he sees danger, is he required to slow up. In such a case the first duty of the engineer is to the safety of his passengers, and when he cannot stop his train before striking the cattle, he is justified in running at a high rate of speed, if, in so doing, there is less danger of derailing the train, although the result is to render the escape of the cattle more difficult. Robinson v. Flint & P. M. R. Co. (1890) 79 Mich. 323, 19 Am. St. Rep. 174, 44 N. W. 779.

And the law does not require a train to be stopped or its speed slackened because a mule may be in plain sight from the engine, as it grazes on the highway 50 or 60 yards from the railroad crossing, but, to require such action, the animal must be on the crossing, or in such proximity thereto that a collision may reasonably be expected by those in charge of the train, unless the speed be slackened or the train stopped. St. Louis, A. & T. H. R. Co. v. Russell (1891) 39 Ill. App. 443.

The engineer of a passenger train is not bound to stop the train upon seeing, half a mile distant, near a public crossing, cattle grazing some 40 or 50 feet away from the track. Missouri P. R. Co. v. Reynolds (1883) 31 Kan. 132, 1 Pac. 150.

And it is not the duty of the engineer of a train running at a low rate of speed, in approaching a crossing, to slow the train down upon seeing cattle standing 50 feet from the tracks, without evincing any nervousness or excitement, and he is not bound to anticipate that they will suddenly attempt to cross the tracks when the train is so close that it cannot be stopped. San Antonio & A. P. R. Co. v. Dunn (1918) Tex. Civ. App. 207 S. W. 204.

In Rio Grande Western R. Co. v. Boyd (1908) 44 Colo. 119, 96 Pac. 781, where a cow was killed at a crossing,