It is conceded that the mare and other horses were upon the right of way without any fault or negligence of the defendant. It is moreover conceded that the defendant is not liable unless the engineer wilfully or through gross negligence ran upon the mare. The speed of the train was very rapid, but no more so than usual on that portion of the defendant’s road. Of course the engineer cannot be reasonably charged with wilful misconduct or gross negligence, unless he saw, or by the exercise of slight diligence might have seen, the mare in time to have prevented the injury. The mere fact that the engine tooted more or less for the distance indicated by the plaintiff’s witnesses does not tend to prove that the engineer saw the mare for the whole or any considerable portion of that distance. After having passed the other horses, the tooting may have been prompted by overcaution, or by reason of the near approach to the depot. There are no facts or circumstances in the case which authorize the inference of such gross negligence, unless it be the mere fact that the mare was capable of, and in fact was, running very rapidly, and hence must have remained within the engineer’s range of vision for a greater distance than if she had been standing still or not been running so rapidly. But we are to remember that it was in the night, and that the mare was black, and hence less likely to attract attention. Besides it is undisputed that the bright moonlight prevented the engineer, stationed as he was behind the head-light, from see-, ing the track for more than 150 feet ahead of the engine. *589He testified, in effect, that there was no time for him to do anything, and that an attempt, when so near, to stop the train, would simply have increased the danger to the train and those upon it. The train was running at the rate of thirty or thirty-five miles an hour, and it is not apparent that the engineer could, by the exercise of even great diligence, have prevented the injury. My brethren are all clearly of the opinion that the evidence is insufficient to support the verdict; and after careful consideration I have, with some hesitancy, been led to the same conclusion.

By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.