
    O. C. Cochran, Appellee, v. Iowa Central Railway Company.
    Railroads: injury to stock : evidence.
    
      Appeal from Mahaska District Court. — Hon. D. Ryan, Judge.
    Monday, October 24, 1892.
    Action at law to recover damages for the killing of two colts by a locomotive engine upon the defendant’s railroad. There was a trial by jury, and a verdict and judgment from the plaintiff. The defendant appeals.
    
    Affirmed.
    
      
      Anthony C. Daly and L. C. Blanchard, for appellant.
    
      Bolton & McCoy, for appellee.
   Rothrock, J.

It is conceded that the colts in question were so injured as to be worthless by one of the defendant’s trains on the night of August 10, 1889, and the only question presented for our consideration is whether the animals went upon the right of way and railroad track by reason of defects in the right of way fence. The plaintiff maintains that the evidence shows that they did, and the defendant contends that there was no evidence on that point to warrant the jury in making such a finding. The defendant insists that the evidence tends to show that the colts, while being driven across the railroad track with other -animals, escaped from the other stock, and did not cross over the track, but remained upon the right of way; and that the son of the plaintiff, who had the animals in charge, closed the gates at the crossing, and left the colts on the right of way. As we read the evidence, there is a very decided preponderance to the effect that the colts were not left in the right of way, but in an adjoining pasture, and that the gate for the private way over the railroad was closed. This fact being found, there was no way by which the colts could escape from the pasture and on the right of way, except by going through or over the railroad fence; and the evidence that the fence was insufficient, and out of repair, and that the colts went over’or through it, was, we. think, sufficient to authorize a verdict for the plaintiff.

It would serve no useful purpose to review the evidence in detail. It is enough to say that a careful examination of it leads us to the conclusion that the judgment of the district court should be affirmed.  