*401OPlAIOH.

This is an action for ‘the value of a horse killed by a railroad train. Under the provisions of act 70 of burden of proof is on the defendant to show hat the killing ## or injury was not the result of fault or carelessness on their part" This however does not mean that-railroad companies are insurers of the stock which may be killed by their trains; and it suffices if they show that they have exercised suoh caution and vigilance as due regard for the rights of others would require under the oiroumstances of each case. Mongogna vs Illinois Central R. R. Co. 115 La 595.

The trial judge thought that the testimony of a single witness would not suffice to establish a defense under the act. But aside from the fact that we find two witnesses, v/e cannot accept this proposition as sound in law; for neither this statute nor any other fixes the number of witnesses necessary to establish any fact unless it be a contract involving more than JfOO (C. C. 2277), or a claim against a deceased person brought more than one year after the decease. (Act 207 of 1906). Renee no court can fix any such arbitrary standard; and u/ a witness ^either to be believed, or not believed A

*402The testimony of the engineer, who is coroboxnted by tha fireman, is to tha affect that ha saw tha horse near tha tract and apparently in a position of danger; whereupou he slowed down until his train wsb under oomplate oontrol. But that on arriving within about 50 feet he saw that tha animal was on the outside of a short rail, with a rope around his neok and apparently tied. Whereupon ha thought it safe to prooeed; hut in point of fact the horse was not tied, and came around the rail, hacking into the rear end of the "tender".

We are of opinion that the conduot o.f the engineer was not negligent. When the horse seemed in a position of danger, he took the proper steps to avoid an accident} and when there seemed no further danger, he then wont forward. We have twice already held that since it is tha duty of an engineer or motorman to keep a lookout "forward", he has performed his full duty when he passes safely the apparent point of danger, and cannot he held responsible for what ooours behind his hack. Scariana vs Railway Co, 14 Orleans App. 16; Laing vs Railroad Co, 10 Court of App 96. Nor can he ho held responsible whan something wholly unexpected happens even ahead of him. Bensburg vs Terminal Co, 11 Orleans App. p. 1.

in the ease at bar the engineer had reached a point where the animal was appar-j.it safe even if it had not appeared to be tied; and the engineer was justified in going forward, unless we are prepared to hold that ha should have descended from his train to drive the animal to some undefined distance from the track; which we are not prepared to hold. We think the accident was unfdrtunate but unavoidable.

The judgment appealed from is therefore reversed, and it is now ordered that plaintiffs demand be rejeoted at his oost in both courts.

Hew Orleans la,