
    Jeffersonville Railroad Company v. Applegate.
    This case is precisely like The Indianapolis and Cincinnati Railroad Company v. Townsend, ante, 38.
    APPEAL from the Clark Circuit Court.
    
      Tuesday, January 5.
    
    
      
       Mr. Crawford cited tlie following cases:
      The mare was wrongfully on the defendants’ road, and the plaintiff was a wrongdoer by turning her there. The Lafayette, &c., Railroad Co. v. Shriner, 6 Ind. R. 145.—Railroad v. Skinner, 19 Penn. R. 298.—Talmadge v. Ren. and Sar. Railr. Co. 13 Barb. 390.—Brook v. N. Y. and, Erie Railr. Co. 19 id. 364.—Vandegrift v. Rediker, 2 Zabr. 185.—Aurora Branch Railroad v. Grimes, 13 Ill. R. 585. If it appeared from the evidence that no negligence on the part of the defendants caused the injury, or that the negligence of the plaintiff caused it, or contributed to produce it, he should not have recovered. Hawkins v. Cooper, 34 E. C. L. 285.—Sill v. Brown, 38 id. 245.— Brand v. Troy and Schen. Railr. Co. 8 Barb. 368.
      Mr. Crawford, contended that the case was not governed by the statute of March 1, 1853.
    
   Hanna, J.

This was an action by Applegate against the railroad company, for injuries to a mare, the property of said Applegate, by running against and striking her with the cars, &c., of said company. The evidence shows there was no negligence in the company other than that of not having their road fenced. It also shows that the mare was feeding about twenty yards from the track of the road, and as thq locomotive and train approached, she started and ran upon the track about thirty feet before the locomotive. She then received the injury. The plaintiff was not the owner of the land abutting upon the road at that point. The mare was in the habit of running at large in that vicinity, and was turned out by the plaintiff for the purpose of her getting water and food. The road of defendants was not fenced. No evidence was offered that the board of county commissioners had passed any order allowing such animals to run at large. Applegate had judgment for the amount of damage proved, to-wit, 50 dollars.

R. Crawford, for the appellants .

J. D. Ferguson, for the appellee.

The defendant insists that the mare of plaintiff was by him wrongfully suffered to run at large, and on defendants’ road, and therefore he had no right to maintain this suit. This is the point in the case; and we have already passed upon it at this term, in the case of the Indianapolis and Cincinnati Railroad Company v. Townsend .

Per Curiam. — The judgment is affirmed, with 1 per cent, damages and costs. 
      
      
        Ante, 38.
     