the accident. The snow was deep, and the traveled track had become raised somewhat by snow repeatedly blowing upon it, and for this cause the snow was unusually deep on either side of the track. This general condition was known to the engineer, and also the fact that no track led from the traveled way before it crossed the railroad track. The horse had one of its forefeet cut off. The foot was found between the rails. The horse, thus maimed, was on the south side of the track as the train passed it. From this statement of facts the jury were warranted in reaching the conclusion that defendant’s servants did not use ordinary care in their efforts to stop the train after the horse was seen by them, and before reaching the highway crossing. Ii respondent’s testimony was true, they used no efforts. If the engineer’s testimony was true, it shows that he might easily have stopped the train some distance before reaching the crossing. He says when he first saw the horse he set the air brakes, and brought the train almost to a standstill; that he then directed the fireman to watch the horse and report his movements; that, when they had almost reached the crossing, at a warning from the fireman he “put on the air again.” It is clear that, from the time he directed the fireman to watch the horse until he received the warning, he did nothing to stop the train, but, on the contrary, was pulling it ahead. True, he subsequently testified that he did all that could be done to stop the train, but the jury had a right to take his first statement.
At the time the horse was first seen by defendant's servants, did they understand, or ought they to have understood, that the horse was in peril? The engineer says he did not consider the horse in danger. But that was not the test. Were the circumstances, as known to him, such as would have induced the belief in the mind of a man of ordinary prudence that the horse was in danger? Shear. & R. Neg. § 99; Washington v. Railroad Co., 17 W. Va. 190. When the train was at the whistling-post, eighty rods east of the highway crossing, and running twenty miles an hour, the horse was in the parallel highway fifteen or twenty rods ahead of the train. When the train had passed the whistling-post twenty or thirty rods the engineer saw the horse. Certainly the horse could not have gained any upon
