Action for damages for negligently injuring a cow, the property of the plaintiff, in ivhich a recovery ivas had and from which defendant appealed. It is first insisted that the trial court erred in refusing the general affirmative charge with hypothesis, requested by the; defendant. This contention is predicated on the proposition that tlie testimony of defendant’s engineer, avIki Avas operating the engine at the1 time of the infliction of the injury, is not in conflict Avith the testimony of Walden, a witness examined in behalf of plaintiff, wrho Avas an eye; witness to the occurrence.. In *371this defendant’s counsel are mistaken. Walden says that his attention was attracted to the- occurrence by “the engineer blowing the whistle and trying to get the cow off’’ the track. “The engine ivas seventy-five or one hundred yards from the cow when 1 first saw her.” He also says “that the cow' was on the track when I first saw her, and that she ran fifteen or twenty steps before the train struck her.” lie:.further says “it looked like she run down the road, and when she did, the engineer threw the throttle wide open and increased the: speed of the train and struck her.”

If this testimony is to be believed a plainer case of negligence on the part of the engineer could scarcely be proven. The’ engineer, however, denies all this. He testified in substance that the cow suddenly came from behind a pile of lumber within ten or fifteen feet of the track,-which hid her from his view, when his engine was about one hundred and fifty feet away, traveling at a rate of speed of twenty miles per hour, and that as soon as he discovered that she was going upon the track he applied all the necessary means at hand to- stop his train, and that it was- impossible to cto so, although it was equipped with' all the modern appliances. He, however, did, he says, reduce: the speed to about ten miles an hour before striking her. He also says the cow only ran down the track about five feet before she was struck.

Clearly this conflict between the testimony of these two witnesses was a, matter for the jury and not for the court. The charge was properly refused. Charge No. 6 was also properly refused.

Under the evidence, it cannot be affirmed as a. fact, free from adverse inference, that the engineer was, at the time and just- before the cow was struck, keeping a look-out for obstructions on the track. The track is .shown to have been straight for more than a mile, and if it be true that the cow wasi seen, as Walden testified, bv the engineer some seventy-five or one hundred yards before overtaking her, the inference may be indulged that he wins not keeping a look-out for obstructions as asserted by the charge. Moreover, the charge was misleading. It was calculated to induce the jury to the belief that the engineer was under no duty to keep a look*372out for the cow if she was not on the track, though in dose proximity thereto. Besides the form of the charge was bad. It did not predicate a finding by the jury of the fact asserted in it, although it hypothesized their belief of the evidence.

We do not think the trial court erred in refusing the motion for a new trial. The case was clearly one for the jury and their verdict, in our opinion, ought not to be disturbed.

Affirmed.