
    Douglas L. Vincent, Respondent, v. The Current River Railroad Company, Appellant.
    St. Louis Court of Appeals,
    April 18, 1893.
    Railroads: statutory liability for killing of stock. The evidences in this cause is considered, and is held insufficient to conclusively establish that the stock lulled came upon the railway tracks at the crossing of a public highway.
    
      Appeal from the Hotoell Circuit Court. — Hon. W. N. Evans, Judge.
    Affirmed.
    
      Olden & Orr, for appellant.
    No brief filed for respondent.
   Biggs, J.

— This is an action under section 2611 of the Revised Statutes of 1889 to recover double damages for killing a steer, the property of the plaintiff. It was alleged that the animal came upon the track of the defendant’s railroad at a point where the road ran through uninclosed lands; that it was there struck and killed by a locomotive; and that the railroad was not fenced at the place where the steer came upon the track. The cause was submitted to the court without a jury, and judgment was entered for $30, being double the value of the steer. The defendant has appealed.

The killing of the animal, its value, that it was the property of the plaintiff, and that the railroad was not fenced, are conceded facts. The sole contention of defendant’s counsel is that all. the evidence tended to prove that the steer came upon the track at the crossing of a public highway. Our examination of the record has led us fco a different conclusion.

None of the plaintiff’s witnesses saw the steer killed, but they testify to physical facts, which tended ¡strongly to prove that the animal was knocked off the railroad track at a point from twelve to thirty feet west ■of a public highway by a train going east, and that, when the animal was struck, it was running east along the track toward the highway. On the other hand the •defendant’s witnesses testified that the train that killed the steer was running west; that he. came from the south onto the railroad track at the road crossing, and that he was struck on the right side. The rebuttal evidence was to the effect that, up to the time the animal was killed, no train had gone west on that day, but that about that time one had gone east. It was also shown that the steer was struck on the’left side, which, if true, thoroughly discredited the defendant’s evidence.

It will be thus seen that the case was decided on •conflicting testimony, which prevents ns from interfering with the judgment. It will, therefore, he affirmed.

All the judges concur.  