Hansen

It is averred that a train of the appellant company ran over and killed thirteen blooded Jersey cows belonging to respondent, for which injury he seeks damages. The jury made an award in his favor and the appellants bring this appeal. Respondent maintained a dairy situated about three-eighths of a mile from the railroad track. He knew that the morning passenger train of appellant company was accustomed to pass down the track each morning at about 8:19, and he always waited until it had passed before driving his cows to pasture across the track. After crossing the track at the regular crossing, the cows follow a road along parallel to the track for a distance of about 400 feet before entering the gate to their pasture. This road is separated from the right of way by a wire fence. On the morning in question the respondent heard a train go down the track at about 8:19 and he assumed that this was the regular train. In fact, however, it was a special running on the regular time, the regular passenger train being some twenty minutes late. When the respondent heard the special go by he started his cows down the lane toward the crossing. He was in the lead of the herd of 115 cows and his…

In denying a rehearing of this cause after decision by the district court of appeal we desire to say that we do not approve of the statement in the last paragraph of the opinion that "under the doctrine of the 'last clear chance' " the engineer was required to bring his train to a stop. The last clear chance doctrine, in our opinion, is not involved in the case, and it is not under that doctrine that he should have brought his train to a stop. The petition for a rehearing is denied. Shaw, C. J., Lennon, J., Myers, J., pro tem., and Waste, J., concurred.