Kellam, J.
This is an action to recover the value of two mules conceded to have been killed by defendant’s train at a point where defendant’s track crosses the public highway. The plaintiff had judgment, and after denial of a motion for a new trial, defendant appealed.
' In his oral argument, appellant contended that the complaint itself was fatally defective, in that it did not expressly allege negligence on the part of the defendant in causing the injury complained of. Section 5501, Comp. Laws, makes proof *397of the killing prima facie evidence of the negligence of the company, so that, when the killing is established, the negligence is also sufficiently proved, until the defendant, by evidence, disproves the prima facie case of negligence so made. The general rule is that it is only necessary to plead what, if proved, will entitle the pleader to the relief he asks; but proving the killing also proves the negligence, and these twTo elements constitute the cause of action or claim for relief. It seems to be logical that, whfm the statute attaches a definite effect to a fact, pleading of that fact is also pleading its legal effect. Such is the view of the Iowa court, and it is so held in several cases. See Engle v. Railway Co., (Iowa,) 37 N. W. 6, in which it is said that the allegation of negligence is redundant. See, also, Rose v. Railway Co., 75 Iowa, 625, 34 N. W. 450, where the only question was as to the necessity of such averment. The court held it unnecessary. In Seska v. Railway Co., 77 Iowa, 137, 41 N. W. 596, the same rule was again declared. In Railway Co. v. Brown, (Ark.) 4 S. W. 781, the court said: ‘‘The objection that negligence on the part of the company is not averred is not well taken. It was shown that the stock was'injured by the company’s train, and that the statute makes prima facie evidence of negligence. A legal conclusion need not be alleged.” Railway Co. v. Snavely, 47 Kan. 637, 28 Pac. 615, was an action for damages by fire under a statute making proof of the setting out of the fire by the company prima facie evidence of negligence. Upon the question now under consideration the court said: Whenever sufficient facts are alleged in the plaintiff’s pleading which would, if proved, make out a prima facie case against the railroad company, sufficient facts are allegéd to constitute a cause of action against the railroad company. It might be better to plead negligence expressly; but, whqn a plaintiff has alleged all the facts which he is re quired to prove to make out a prima facie case, it would seem that his pleading ought to be held good.” See, also, Hindman v. Navigation Co., (Or.) 22 Pac. 116. We think the omission *398to expressly charge negligence was not a fatal defect in the complaint.
Upon the trial the plaintiff proved the killing of the mules and their value. He also testified that at the time of the accident he was driving these mules, with other stock, along the highway; that he did not know at what time the train passed, only that it was in the afternoon; that shortly before he reached the crossing he “slacked up” to see if he could hear or see any train, looked two or three times each way, and could not see or hear any.. He then went forward with his stock, and when close to the track and about to cross, he for the first time beard the engine whistle, but not in time to prevent the stock attempting to cross. ■ He says, “No man on earth could have then stopped them. ” In thus attempting to cross the track the two mules-, were killed. With this testimony the plaintiff rested. Defendant moved the court to direct a verdict in its favor, which was refused, but the refusal is not assigned as error. The defendant then introduced as witnesses the engineer and fireman in charge of the engine. Their testimony was that, before crossing the highway where the accident occurred, the track ran for some distance through a deep cut, which ob • structed the view between the track and the highway where the defendant was driving his mules, the track and the highway crossing each other diagonally; that this cut so obstructed the view between the track and the highway up to a hundred feet of the crossing; that at the usual distance from .the crossing the whistle was blown and the bell rung, and that .on emerging from the cut, and as soon as the stock were discovered near the track, the whistle was again successively blown, and the air brakes applied, and every precaution taken to prevent the accident. A witness who was a passenger on the train also testified that the whistle was-blown for the crossing, and afterwards the “danger whistle” was biown. As against this testimony, and in rebuttal of it, a witness for the plaintiff testified that he was on the south side of the track, *399where he could see both the track and highway; that he was from a hundred to a hundred and twenty rods from the crossing, on the opposite side of the track from plaintiff and his. stock; that he saw both the stock and the train approaching the crossing, and, apprehending an accident, gave particular attention to what he saw and heard; that he listened to see if they would blow the whistle; that he heard no whistle until “they blowed the danger signal right close to the crossing. ’ ’ Upon this evidence the defendant moved the court to direct a verdict for the defendant, for the reason “that there is no evidence of negligence on the part of the defendant offered by the plaintiff in rebuttal of the evidence of defendant,” and that the statutory presumption of negligence on account of the killing was entirely overcome by the evidence; and the refusal of the court to so direct is the root of all the error assigned.
The ground of defendant’s liability, if liable at all, was negligence. When the killing was proved, a prima facie case of negligence was proved. Comp. Laws, § 5501. The defendant might then present evidence to show its freedom from carelessness or negligence, and thus meet and disprove the presumption that, under the statute, follows the unexplained fact of killing. It might show in a case like this, as it did attempt to do, that the whistle was sounded and the bell rung at a proper distance from the crossing, that those in charge of the engine kept a careful lookout ahead, and that, as soon as the obstruction was discovered, every effort was .made to prevent the accident, both by frightening the. stock from the. track and by stopping the train; or it might show that the carelessness of the plaintiff, and not its own, was the proximate cause of the injury. Then, as in other cases, the plaintiff may introduce rebutting testimony, denying, explaining,.or qualifying the evidence offered by defendant. If . this testimony, when in, leaves the facts undisputed, and they are such that different conclusions or inferences could not reasonably be drawn from them, it becomes the duty of the court to declare their legal *400effect; but if the facts are in dispute, or, if undisputed, they are such that different impartial minds might fairly draw different conclusions from them, they should be submitted to the jury. Wiliams v. Railroad Co., 3 Dak. 168, 14 N. W. 97; Mares v. Same Defendant, 3 Dak. 336, 21 N. W. 5; Railroad Co. v. Van Steinburg, 17 Mich. 122; Railroad Co. v. Stout, 17 Wall. 657; Norton v. Ittner, 56 Mo. 351; Abbett v. Railway Co., 30 Minn. 482, 16 N. W. 266; Totten v. Railroad Co., 10 N. Y. Supp. 572. See, also, 11 Amer. & Eng. Enc. Law, p. 463 et seq.; 2 Thomp. Neg. p. 1236. Applying the principle of the cases cited to this case, I think there was no error in the refusal of the trial court to direct a verdict for the defendant on the ground that there was no evidence from which the jury might find negligence on the part of the defendant.
It is reasonably plain that, if the jury gave full credit to the testimony of defendant’s witnesses, the verdict should have been for the company; but they were not obliged to do so. The plaintiff had testified that he had heard no whistle or bell until the engine was close to the crossing. He says: “It was close on me when it whistled; not further off than- across this room.’’The witness Raymond testified that he was from a hundred to a hundred and twenty rods from the crossing, and saw both train and stock approaching the crossing, and knew that, unless one or the other stopped, “there was going to be a collision;” that he “was listening, wandering whether or no they would blow7 the whistle;” that he saw the train ‘ ‘on the upper end of the cut, coming this way;” that he “heard no whistle until they blowed the danger signal right close to the crossing.” Both the engineer and fireman had testified that the whistle was blown and the bell rung the usual distance from the crossing, which they said was about 80 rods. The fireman, however, testified that the train was in the cut before the whistle was blown. The jury might have believed that the wiiness Raymond, whose attention would be noturally fixed, as he says it was, by his apprehension of an impending accident, would be *401more liable to be correct as to tbe blowing of the whistle than either the engineer or the fireman, to whom it was an occurrence so frequently repeated that, in the absence of unusual circumstances to fix their attention upon it at the time, it would naturally have left no distinct impression on their memory. It is not always true that positive testimony must prevail over negative. Surrounding circumstances may greatly affect the comparative value of each.' This testimony of this witness as to his nearness to the train, that the day was clear and still, that he was attentively watching and listening to see ‘ ‘whether or no they would blow the whistle,” and that he did not hear it, clearly presented a conflict with the evidence of defendant’s witnesses that the whistle was blown, and made a question for the jury. If they believed the defendant’s witnesses were mistaken as to the blowing of the whistle and the ringing of the bell, and that no whistle was blown or bell rung until the danger was too imminent to be avoided, and that such failure-to give notice of their approach was the cause of the accident, and that plaintiff was not negligent, then they might have found for the plaintiff. We think that, within the latitude of judgment and inference which a jury is entitled to exercise, they might have found either way.
Appellant further contends that the plaintiff himself was guilty of such contributory negligence as would prevent his recovery. We think this question, like that of the negligence of the defendant, was, upon the evidence, a question for the jury. The plaintiff had testified that he did not know at what time the train was due or usually passed the place of the accident, only that it came along during the afternoon; that before he reached the crossing he “slacked up,” and listened and looked, but heard or saw no train; that he “slacked up on a walk on purpose to watch and hear.” It was in the day time, and there was no wind or storm to interfere with his hearing an approaching train. On one side of the' highway the track runs through a *402cut to within a hundred feet of the crossing, whose bank obstructed the view between the highway where the plaintiff was and the track. Appellant contends that respondent should have gone forward to the track, and thus ascertained whether or not a train was approaching, and that he was guilty of negligence in not doing so. The jury might have so found as a matter of fact, under all the circumstances, but we do not think the court could have so ruled as a matter of law. There is no arbitrary, inelastic rule regulating what a person on the highway approaching a railroad crossing shall do to avoid the imputation of negligence. In Kellogg v. Railroad Co., 79 N. Y. 76, where the claim of contributory negligence on the part of the deceased was made, the court said: “Under all the circumstances surrounding the accident, we think it was for the jury to determine whether he exercised that care which the law required of him. He could probably have avoided the accident by stopping before he passed upon the track; but that is a degree of care not usual, even with very prudent men. * * * There may be cases where a traveler ought to do so, and, if he omits to do so, it would be one of the facts, with all the others, to be submitted to the jury.” See, also, Tyler v. Railroad Co., 137 Mass. 238; Totten v. Railroad Co., supra; Railroad Co. v. Crawford, 24 Ohio St. 631; Railroad Co. v. Van Steinburg, supra; Hahn v. Railroad Co., 78 Wis. 398, 47 N. W. 620. See, further, Shear. & R. Neg. § 477, note, where it is stated that the great weight of authority is in favor of the rule that it is for the jury to decide whether, under the circumstances of any particular case, failure “to look and listen” is such contributory negligence as will defeat a recovery. But in this case the plaintiff did slacken his horse “to a walk,” and “walked quite a little ways” to see if he “could see or hear auy train.” He says he could not, and “thought the crossing safe.” It will be remembered that plaintiff was driving a bunch of loose horses and mules along the highway. He says they were strung out before him, and going on a trot. It does not appear whether *403they were going at that pace of their own accord, or he was urging them. That, for some distance back from the crossing, but how far we are unable to tell from the evidence, he could not, on account of the embankment, see the train in the direction from which it was coming, without going clear to the track. To do this he must, if he could, have ridden ahead of the horses and mules he was driving, and held them back until he could go to the track and make the observation. Perhaps he-should have done this. We think the evidence tends to show negligence on his part, but does not establish it so conclusively as to justify the court as so declaring as a matter of law. We think the correct rule for this case is announced in Hoyt v. City of Hudson, 41 Wis. 112: ‘ ‘If such negligence conclusively appears, the court will nonsuit the plaintiff, or direct the jury to find for the defendant. If the evidence only tends to show such contributory negligence, the question must go to the jury, to be determined, like any other question of fact, upon a preponderance of the evidence.” Possibly the judges of this court, from a simple reading of the evidence, might have reached a different conclusion, but the trial jury had advantages superior to ours, growing out of a direct contact with the witnesses themselves. Added to this, the trial court, with the same advantages for judging of the candor and fairness and intelligence of the witnesses, and with the impression which the evidence made upon him still fresh in his mind, refused to set aside the verdict; and, while we are not entirely satisfied that upon the evidence the plaintiff should have recovered, we are of the opinion that this court could not disturb the verdict without violating well established rules of appellate practice. The judgment of the circuit court is affirmed.
Bennett, J., concurs.