
    John Jenicke vs. Minneapolis & St. Louis Railway Company.
    December 1, 1880.
    Evidence considered, and held insufficient to sustain tlie verdict.
    Appeal by defendant from a judgment of the district court for Scott county, Macdonald, J., presiding, refusing a new trial.
    
      L. L. Baxter, for appellant.
    
      L. M. Brown, for respondent.
   Gilfillan, C. J.

There is no evidence that the plaintiff’s horse was killed by defendant. All that is shown is that she was found dead near defendant’s track, without any wounds upon her or appearance of any collision, except an old wound which she had received by running against a fence. It is incredible that a train of cars should have come in collision with and killed her, without leaving any mark upon her. Such a thing might be possible, but it is so highly improbable that, in the absence of any marks of a collision, the mere fact of her being found dead near the track is no ground for inferring that she was killed by a passing train.

Judgment reversed, and new trial ordered.  