Page:North Dakota Reports (vol. 2).pdf/471

 the train, and, at most, could not have been more than twenty rods ahead of the train at that time. He was on the traveled track, deep snow on either side, running in fright from the train. If he left the traveled track it would be to go into deep snow, where he could not run, and if he continued upon the traveled track he must inevitably cross the railroad track a very short distance ahead. If train and horse reached the crossing at the same instant, injury to the horse must result. These conditions were known to the engineer. We think the jury warranted in believing that the engineer understood, or ought to have understood, the peril of the horse when he first saw it.

There are errors assigned upon the admission and rejection of certain testimony. None of these assignments raise any question of general interest. We have examined them, but find no prejudicial error.

It is also claimed that the evidence does not support the verdict in certain particulars. We have read the testimony with care, and think that, under the instructions, it has ample support. We will notice one point. It is claimed to be undisputed that the horse ran against the side of the engine, and that the engine did not run against the horse. Perhaps the point is not very material. The engineer swears to it positively. No witness supports him. Two of plaintiff's witnesses, while admitting that from their respective positions they could not be positive, yet they both thought that the horse reached the track ahead of the engine. If the engine moved suddenly and rapidly in front of the horse when he was so near the railroad track that he could neither stop nor turn, we are not able to see why appellant’s liability should be different from what it would be if the horse reached the point of intersection an imperceptible instant ahead of the engine. But the engineer testified that the train stopped in the distance of about a car’s length after the collision, and then pulled one or two hundred feet beyond the crossing; hence appellant argues that it is undisputed that the train must have been going quite slowly at the time, and that the defendant should no more be held responsible than if the horse had run against a standing engine or the last