
    No. 5818.
    PAUL FELIX vs. ILLINOIS CENTRAL RAILROAD COMPANY.
    Syllabus.
    Under Act 70 of 1886 the burden lies upon the railroad company to overcome the presumption of negligence arising from the billing of stock upon its tracks.
    Appeal from the 28th Judicial District Court, Parish of Jefferson, No. 1358. Hon. Prentice E. Edrington, Judge:
    . L. H. Marerro, Jr., for plaintiff and appellee.
    R. J. Perkins, for defendant and appellant.
   His Honor,

EMILE GODCHAUX,

rendered the opinion and decree of the Court, as follows:

Plaintiff’s mule was killed by defendant’s train and he recovered judgment below for its value.

According to plaintiff’s witnesses, defendant was guilty of gross negligence — for they testify that the mule and a horse were running upon the track in front of the train; that the train did not stop, but simply , slowed down at times as it approached the animals, starting up again as the-latter forged far enough ahead of it;-that this’continued for a distance of one-half of a mile, when the mule was struck and killed; and that the horse, which' was not injured, continued ahead of the train for a distance of nearly two miles before it left the tracks,

■ On the other hand, according to defendant’s1 witnesses, the-latter was entirely free from negligence, for their version is that there was no horse on the track at all oil this occasion, and that the mule suddenly ran upon the tracks such a short distance ahead of the fast moving train as to make it impossible to avoid the accident.

Opinion and decree, June 13th, 1913.

Rehearing refused, July 21st, 1913.

' Plaintiff’s witnesses are all disinterested, and those of ■defendant- are its employes, in charge of its train. Coupling this incident with the presumption established by Act 70 of 1886, we find no error in the trial Court’s conclusion that defendant has failed to establish its freedom from negligence, for the evidence on either side appears .evenly balanced. The judgment is accordingly affirmed.

Judgment affirmed.'  