Kent v. New Orleans & Texas Ry. Co.

delivered the opinion of the court.

The issue of fact is, as conceded by appellant’s counsel, a very *609narrow one; but we are constrained to believe that it really exists. We cannot say, looking at the whole case on its undisputed facts, that there is nothing proving negligence, or tending to prove it.

The injury occurred on a clear star-lit night, on a straight track? and in open fields; the animal ran rapidly for three hundred yards down the track in front of the locomotive; the engineer testifies that he was at his post, and on the look-out, but that he only saw the animal when within twenty or thirty yards of her, and that it was impossible then to stop the train in time to prevent the accident.

Whether there was negligence in the engineer’s failing to see the animal for 270 or 280 yards, under the circumstances, was a question proper to be submitted to a jury; for, admitting the engineer did not see the animal, the question remains, could he and ought he to have done so ?

Reversed.