Simmons, C. J.,dissenting. The evidence of the servants of the company rebutted the legal presumption of negligence. The legal presumption being rebutted, there was no evidence tending to show negligence of the company, and the court should have sustained the certiorari.
Certiorari. . Before Clarence Wilson, judge pro hac vice. Early superior court. April term, 1898.Chancy obtained a verdict for damages from the killing of a cow by a railway-train. On certiorari the railway company alleged that the verdict was contrary to law and evidence. The certiorari was overruled. The engineer of the train testified^: lie did not see the cow until after she was killed. There were thick bushes at that point. He discovered that something was under his engine and presumed that she came from behind them, or rather from the left. Was on the lookout; and if the cow had been visible, would have seen her. She was killed about halfway between a blow-post and a public crossing. Was running twenty-live miles an hour at the time. Sounded whistle at blow-post. There was nothing he could have done to prevent the killing. The fireman testified that he was shoveling coal at the time of the killing, and was not in a position to see anything. Another witness testified that there were thick bushes to the left of the road between blow-post and crossing. There was evidence for the plaintiff, that the whistle was not blown at the blow-post, nor until the train stopped to take the cow from under the engine; also that the place where the cow was struck was on an embankment about two feet high, between the blow-post and the crossing, that there was an open place on each side of the engine, and the cow could have been seen standing on the track at that place, on either side, twenty or thirty feet away; that there were a few little bushes, but the cow could have been seen lying down in them.W. T. J ones and B. FI. Powell & Son, for plaintiff in error.
B. U. Sheffield, contra.