from the horse when you applied the brakes? A. I should judge between six and seven hundred feet. I would say between six and seven rods. Q. Or how many feet. A. About 114-15 feet. Q. State whether or not this is a long or short distance to stop a train in of that kind. A. A short distance to stop a train of that kind. Q. About what rate were you running at the time you saw the horse? A. Twenty miles an hour. Q. About what rate when you struck? A. About five. Q. You stopped, did you? A. Yes sir. Q. Was there any one there when you stopped? A. No one there when I stopped.” The witness further testified that the train reached the bridge about 8:45 p. m., and that it was dusk, but not dark, at the time; that the lights on the train were lighted at the last station, Boynton, some three miles distant; and that the headlight is not much of a light until darkness comes. “Q At that time of day, how far could you see along the track? A. Not over one hundred and fifty feet. Q. Could you stop a train of three coaches with the latest improved air brakes in going the length of the train? A. Yes sir.”
The testimony of the conductor, so far as it bears on the points made in the assignments of error, corroborates that of the engineer, but the appellant claims that there is a material conflict in the testimony of the fireman and engineer as to where the train was with reference to the position of the horse when the horse was discovered by the engineer and fireman. It will be necessary to consider this feature of the fireman’s testimony, which is as follows: ‘“Q. Where were you, and what were you doing, on the evening of May 24th or 25th, 1890, the time of this accident? A. I was firing with Mr. Furtny [the engineer] on a special.” Speaking of a point about a half a mile from the bridge, the witness was asked: “Q. From this time on until the engine struck the horse, what were you doing? A. Sitting on the seat. Q. Where was that? A. Left hand side of the engine. Q. What were you doing? A. Looking out of the window. Q. Were you constantly looking along the track? A. Yes sir. Q. How far was this from the bridge? A. About a half a mile. Q. During that time, did
N. D. R.—25.
