Proctor v. . W. W. Railroad Company

Settle, J.

This aefion having been commenced within six months after the injury complained of, there is a presumption of negligence against the defendant.

But the facts found by the referee more than rebut that presumption and show positively that the defendant exercised due care.

A cow jumped across a ditch upon the track of the defendant’s road, two hundred yards ahead of the engine, while the mail train was running at the rate of 23 miles an hour. Erom the nature of the surrounding ground, and a cut in which the train was, the engineer could not see the cow until she jumped upon the track.

The engineer blew the alarm whistle, the breaks were applied, the engine was reversed and the speed slackened to the rate of 20 miles an hour. The train was provided with breaks and breaksmen and could not have been stopped in less than four hundred yards while running at that speed.

The agents of the road seem to ha/ve been both vigilant and .active; the engineer was at his place, the breaksmen were at theirs ; and they did all in their power to prevent the accident.

What more could have been done ? Nothing that we can see, unless the road had been required to fence the track.

Railroads are very properly held to a rigid accountability ; but they are of great public benefit, and should not be subjected to such unreasonable restrictions as would destroy or greatly impair their usefulness.

The judgment of the Superior Court is reversed.

Let judgment be entered here for the defendant.

PeR CuRiAM. Judgment below reversed.