HARALSON, J.
1. I'f the demurrer to the 1st count of the amended Complaint, were of any merit, which it is unnecessary to decide, its overruling was not hurtful, since the proceedings show that the trial was had without any reference to it, but wholly on the 2d count. The demurrer to this last count, as appears, was very properly overruled. It does not sufficiently allege that the cow was killed or injured, 'but no ground raises this defect.
2. The evidence of the plaintiff was that he owned the cow, and her value; that she was struck by defendant’s engine about 100 feet from the west end of a fill or embankment, and about 200 or 300 feet from its east end; that there was a public road crossing about 100 yards from the west of the embankment; that there were two tracks on the embankment, used indiscriminately by the defendant -company and the Southern Railway Company; that all trains going east used the north, and all going west used the south track, and that many trains passed over these tracks daily in going and coming.
- The witness for defendant, Adams, testified, that he was defendant’s section foreman, and had charge of the north track on said embankment, and kept the same in order; that the north track was kept in order by the defendant, and the south track by the Southern Railway Company; that going along the track, on the morning of the 30th August, 1898, he saw a cow lying dead at the foot of the embankment, and saw mark® showing that she had rolled from its top; that the cow' was hit by a' train going east on the north track; that at that point there was a curve of about 5 degrees, and going east, an engineer could see the track opposite where the cow was lying, about 100 yards before reaching her. He also testified, that the public road crossed the track on this curve, There was no evidence as to *487how the animal got on the track, nor as to her proximity to the engine when she did. so. Neither was it shown whether defendant’s train or one of the Southern Railway Co. killed her.
3. The fact that the defendant company alone, kept in repair the north track, and used it, is prima facie evidence of its ownership, and, in the absence of any evidence to. the contrary, is sufficient to establish its ownership, as for the negligent act charged against it.
4. The evidence showed without conflict, as has been seen from the testimony of the 'witnesses, that the place where the cow was killed was at or near a public road crossing, and on a curve crossed by a public road, where the engineer could not see a fourth of a mile ahead. He did not, so far as it appears, blow the whistle or ring the bell at least a fourth of a mile before reaching said public road crossing, and continue to do so until he had passed the crossing, nor did he immediately before entering the curve, crossed by the public road, where he could not see a fourth of a mile ahead of him, approach and pass such crossing, at such speed as to prevent the killing of the cow, — all as provided shall be done by section 3440 of the Code. By section 3443, the burden of proof was on the railroad- company to show a compliance with the requirements of said section, 3440, and it is liable for all damages done to persons or stock or other property resulting from a failure to comply with such requirements, — a burden it did not pretend to discharge.—Ala. G. S. R. Co. v. Boyd, 124 Ala. 525" court="Ala." date_filed="1899-11-15" href="https://app.midpage.ai/document/alabama-great-southern-railroad-v-boyd-6518420?utm_source=webapp" opinion_id="6518420">124 Ala. 525; Central of Ga. R'y Co. v. Stark, 125 Ala. 365.
The court did not err in rendering judgment in favor of plaintiff.
Affirmed.