
    Railroad Co. v. McMillan.
    1. In an action against a railroad company, to recover damages for killing live stock, the plaintiff must prove affirmatively that want of ordinary care on the part of the company or its employes caused the injury.
    
      %■ Such inference does not arise from the mere fact that the animal was killed.
    Error to the District Court of Harrison County.
    John McMillan plaintiff below, brought an action against the Pittsburgh, Cincinnati & St. Louis Railway Company, defendant below, to recover damages for the negligent killing of a mare. The evidence showed that the mare escaped from her pasture on the night of July 6, 1872, and wandered upon the railway track. During the night a rain fell, and in the morning the hoof-marks showed that the mare had galloped on the track a distance of about forty rods, to a point where she was found dead, having been struck by the engine of a passing train. There was some slight evidence tending to show that the night was dark and foggy. The railroad company introduced no evidence to explain or account for the killing. The jury returned a verdict in plaintiff’s favor, and judgment was entered thereon, which judgment was affirmed by the district court. It is claimed here, among other things, that the verdict was not sustained by sufficient evidence.
    
      J. Dunbar, for plaintiff in error.
    
      J. M. Estep, for defendant in error.
   Longworth, J.

This court held in Ruffner v. C. H. & D. R. R. Co., 34 Ohio St. 96, that no inference of negligence on the part of a railroad company arises from the mere fact that injury results from a fire caused by sparks from a passing locomotive; and in Railroad v. Lawrence, 13 Ohio St. 66, it was held that want of ordinary care must be proved affirmatively to authorize the recovery of damages for live stock killed by a train of cars. The rule is well settled that in such case the mere fact that the animal has been killed, will not warrant a presumption of negligence on the part of the employes of the company. Even in those states wherein statutes have been enacted, providing that proof of killing shall be of itself sufficient to cast upon the company the burden of proving that proper and ordinary care was used,.the courts have said that, but for such statutes, the rule would have been otherwise. 78 Ky. 621; 36 Ark. 152; Pierce on Railroads, 428.

In the ease before uc, we are asked to say that the evidence showing that the mare ran a distance of forty rods in front of the engine, was sufficient to authorize the jury to find that the engineer must have seen her, and could have stopped his engine within that distance; there being also evidence in the case tending to show, that within such distance the heaviest freight train could be stopped. We should agree to this proposition, were there anything to show that the engineer did see the animal, or might have seen her, had he exercised proper care in running his engine, in time to have avoided the injury; but upon this point the evidence is absolutely silent. Perhaps such inference might be authorized, had the accident occurred in broad daylight; but how dark or foggy this night was, the jury could not know.

Indeed, it may be true that the mare had galloped along the track some time before she was killed. In the total absence of evidence upon a material fact, the jury were not warranted in guessing that negligence caused the injury.

Judgment reversed.  