Page:North Dakota Reports (vol. 2).pdf/469

 The country is level prairie, and there was no obstruction to the view from the train along the highway. Plaintiff's house and barn were upon the south side of the track (left hand side of the train), about half a mile east of the place of the accident, and about ten rods from defendant’s track, and the same distance west from the track of C., M. & St. P. R. R., which crosses defendant’s track at right angles. About half a mile west of this crossing and of plaintiff's barn is the sleigh crossing at which the accident occurred. Plaintiff's horse was in this barn. Plaintiff's servant went to the barn to water the horse, and opened the door and went in. The horse slipped his halter, and ran out, and finally ran onto the public highway, which runs for half a mile parallel to defendant’s track, about four rods distant therefrom, and then turns at right angles and crosses the track. The horse ran along this highway west towards the crossing, and plaintiff's servant followed him up as fast as he could. The snow was deep and there was no other track through it than that of the public highway mentioned. When defendant’s train started up, after stopping at the C., M. & St. P. R. R. crossing, the horse was on the highway about one-fourth the way from the Milwaukee crossing, going west ‘at a pretty good jog.’ Defendant’s train increased its speed until, at the whistling post, it was ranning about twenty miles per hour. At this whistling post, eighty rods east of the sleigh crossing where the accident occurred, the engine gave the whistling signal required by the rules of the company. The horse was then fifteen or twenty rods ahead of the train. About fifty or sixty rods east of the sleigh crossing the engineer first saw the horse.” We quote now from the engineer’s testimony on his direct examination when first put upon the stand: “When I saw the horse I put the air on to stop the engine. I set the air brakes. The engine slowed down materially at that time; came almost to a standstill, I directed the fireman to keep a lookout for the horse, to notify me of its movements. When we got nearly to the track the fireman said, ‘George, he is moving towards us.’ I put the air on again.” It should perhaps be stated that respondent’s evidence tended to show that no effort whatever was made to stop the train until about the moment of