
    The Indianapolis, Bloomington, and Western Railway Co. v. Penry.
    
      Uaileoad.—Injury to Animal—Miidenee.—In [an action, under tbe statute, against a railroad company for an injury to an animal, the fact that the • road vas not fenced must he proved by the plaintiff; if it could not legally be fenced, this fact is to be proved by the railroadcompany.
    From the Boone Circuit Court.
    
      O. Black, A. J. Boom, and B. W. Ha/rrison, for appellant.
   Downey, J.

Suit by the appellee against the appellant, to recover the value of a cow killed by the locomotive and cars of the company, at a point on its road where it was not fenced.

The action was commenced before a justice of the peace, from whose judgment there was an appeal to the circuit court. In the circuit court, there was a trial by the court, a finding for the plaintiff, a motion for a new trial overruled, and judgment on the finding.

The question presented by counsel for the appellant in their brief is as to the sufficiency of the evidence to justify the finding of the court.

It is contended that the cow came on the railroad and was killed at a point where the road could not legally be fenced by the company. That the road was not fenced, is a point to - be proved by the plaintiff. That it could not legally be fenced, is to be proved by the company.

The evidence does not clearly show that the road could not legally have been fenced at the point in question.

The judgment is affirmed, with five per cent, damages and costs.  