
    Peter Lyndsay v. Connecticut and Passumpsic River Railroad Company, Apt.
    
    
      Negligence.
    
    Negligence and want of care not to be presumed without any evidence.
    Action on the case. The plaintiff in his declaration averred that, by reason of the neglect of the defendants to erect and keep in repair a sufficient fence by the sides of their railroad, through the ¡olaintiff’s laud, two of the plaintiff’s oxen, which were permitted to stray on said railroad, were struck by the defendant’s engine and killed. Plea, the general issue. The case was submitted on the following statement of facts agreed upon by the parties.
    The defendants railroad passes through the plaintiff’s farm. The defendants had taken the land upon said farm, over which their road was constructed, and paid for the same upon the appraisal and award of commissioners, agreeably to the provision of their charter. Very early in the morning of the day named in the declaration, the defendants were running their freight train over said railroad, and in so doing, run their engine and cars over the plaintiff’s oxen and killed them. The oxen were lying upon the lands so taken by defendants of the plaintiff, and between the fences on either side of the same, and upon the track of said road, and were worth seventy dollars.
    Upon said statement of facts, the county court, June Term, 1853, —Poland, J., presiding, — rendered judgment for the defendants.
    Exceptions by the plaintiff.
    
      T. Potts, for the plaintiff.
    
      S. W. Slade and A. Underwood, for the defendants.
   The opinion of the court was delivered by

Bennett, J.

In the present case, there is no evidence that the plaintiff’s oxen were upon the track of the railroad, through the fault or neglect of the railroad company, and no evidence that the railroad company were wanting in care at the time they were killed. These are not to be presumed without some evidence.

Judgment affirmed.  