car in a lengthy moving train. It is true no witness in terms swears that the train did not stop on the crossing, but two witnesses swore that the speed of the train was not diminished until the collision occurred. At the whistling-post the train was running twenty miles an hour. As men of ordinary judgment, the jury knew that a train running at that speed could not be stopped in a distance of sixty feet. The contradiction was direct in effect, though not in terms. It should be noticed, also, that the conductor of the train, a witness for defendant, testified that the train stopped one or two hundred feet west of the crossing, and mentions no earlier stop, and thinks the train could not have been running twenty miles an hour, because, if so, it could not have been stopped in 200 feet. That testimony indirectly contradicts the testimony of the engineer. In any evert, the admitted fact that the horse’s foot was cut off by a wheel of the engine, and left between the rails, sufficiently meets the allegation that the engine ran over the horse.
Section 5500, Comp. Laws, reads as follows: “All railroad corporations in this territory shall pay full damages to the owner or owners of horses and other stock and cattle that they may negligently and carelessly kill or damage by their cars, locomotives, agents, or employes, along said railroad or its branches, within the territory of Dakota.” Section 5501 is as follows: “The killing or damaging of any horses, cattle, or other stock, by the cars or locomotive, along said railroad or branches, shall be prima facie evidence of carelessness and negligence of said corporation.” Plaintiff introduced evidence to establish a prima Jacie case under the statute. At the close of this testimony de- fendant moved the court to direct a verdict, on the theory that the evidence introduced showed contributory negligence on the part of plaintiff of such a character as to defeat a recovery. The motion was denied, and this ruling was assigned as error. At the close of the entire testimony defendant again moved for verdict, urging contributory negligence of plaintiff, and the absence of any negligence on the part of defendant that wou'd render it liable under the circumstances. This motion was denied also, and the ruling assigned as error. Defendant requesed the following instruction: “If the evidence introduced by de-
