
    The Pittsburgh, Cincinnati & St. Louis Railway Co. v. Hackney.
    Railroad. —Killing Live Stock—Evidence.—In an action against a railroad company to recover for tlie killing or injuring of live stock by its cars at a point on its track where the track might have been fenced, but was not, the allegation that the track was not fenced must be proved on the trial.
    From the Blackford Circuit Court.
    
      
      N. 0. Boss, for appellant.
    
      W. A. Bonham and J. Cantwell, for appellee.
   Perkins, J.

This was a suit by Hackney against the Pittsburgh, Cincinnati & St. Louis Railway Company, to recover the value of a heifer, alleged to have been killed by a locomotive of the road.

The suit was commenced before a justice of the peace.

The complaint charges no negligence on the part of the road, but alleges, as the cause of action, simply this: that, while the employes were running the locomotive on the track, etc., in the county of, etc., said locomotive passed over and killed one red heifer, the property, etc., of the value, etc., at a point where the road was not fenced, etc., but where it might have been, etc.

On the trial, there was evidence tending to show the killing of the heifer, but there was no evidence tending to show that the road was not fenced. Simply proving that the heifer was killed did not make out a cause of action against the road. It was necessary, under the complaint in this case, to prove the allegation that the road was not fenced. The allegation was a material one. The Indianapolis, etc., R. R. Co. v. Wharton, 13 Ind. 509. See The Jeffersonville, etc., R. R. Co. v. Underhill, 40 Ind. 229.

The judgment is reversed, with costs; cause remanded for further proceedings.  