Page:North Dakota Reports (vol. 3).pdf/427

 quick stop; almost threw me off my feet. When they applied the brakes first, I fell forward, and it almost threw me off my balance.

A motion was made at the close of the case to direct a verdict for the defendant, which was denied, and in this court the ruling is assigned as error. We think the ruling was error. There was but a single point arising on the evidence. The court charged the jury as follows: "Now, gentlemen, there is just one question to determine in this case: Did those in charge of that train use ordinary care to prevent the injury after they had discovered the horse? They had no right to anticipate, or, rather, there was no obligation upon them to anticipate, that a horse or a person or anything else was upon the track. But, when they observed that a person or an animal is upon the track, it is their duty to exercise reasonable care to prevent injury to the horse or person, as the case may be.” The charge was entirely correct, and laid down the well established rule and the rule applied by this court in Bostwick v. Railroad Co., 2 N. D. 440, 51 N. W. Rep. 781. But we think the case, as presented by the testimony, is one in which there was a complete failure of proof upon the vital point of negligence, and consequently a case where the responsibility of making a decisive ruling belonged to the court, and should not have been devolved upon the jury. In making out a prima facie case, no testimony tending to show negligence was introduced by the plaintiff. The fact of the killing, however, made out a case of legal or constructive negligence under the statute, which declares: “The killing or damaging of any horse, cattle or other stock by the cars or locomotive along said railroad or branches, shall be prima facie evidence of carelessness and negligence of said corporation.” Comp. Laws, § 5501. But this court held in the case of Smith v. Railroad Co., 53 N. W. Rep. 173, that negligence which is constructive and legal, as contradistinguished from actual negligence, may be overcome by proof of the exercise of due care on the part of the railway company, and that whether or not such constructive negligence has been overcome by testimony is always a question of law for