Page:North Dakota Reports (vol. 3).pdf/423

 and tender, consisted of two coaches, viz: a passenger car and a sleeper. Plaintiff, without proving actual negligence, made out a prima facie case, under the statute, by showing the killing of the horse by being run over by the defendant's locomotive, and the value of the animal. To rebut the presumption of negligence raised by the statute from the mere fact of killing, the defendant introduced as witnesses the men who had charge of the train in question, viz: the engineer, firemen, and conductor. The engineer testified, in substance, that he had been an engineer nine years, and in defendant’s employ six years, and that there were no demerit marks against him as an engineer; that the train in question was a special train drawn by a locomotive then newly repaired, and in good condition, and was equipped with all the appliances in use at the time and all the modern improvements, and that there were air brakes on the engine, tender, and coaches. After leaving the station, at 8:35 ,the train ran for some miles at the rate of about twenty miles an hour until it came upon a rough piece of road, and, while running over that, the rate was about fifteen miles an hour, to a point on the road distant about one-half mile from the bridge in question, and from there the speed was quickened to about twenty miles an hour, until the horse was seen by the engineer and fireman. “Q. How about the lookout? A. I had my lookout all the time. Just before I got to the rough place, I got to the window, and was looking out of the window. Q. Go on now, and state further. A. When we got down very near the bridge, I saw an object, right side, as I supposed was the number board. As I got very near to it, it moved. By the Court: Q. You supposed it was what? A. I supposed it was the number plate of the bridge. It was a white plate, with figures on it. White board, about that wide. * * * A. As I got very near the bridge, I saw the object move, and I discovered it was a horse; raised his head up, and threw one leg over the rail. Q. Where was he lying? A. He was lying between the guard rail of the bridge and the rail on which the engine runs, outside of the track. Just as he made a lunge, he threw one leg over the