
    The Atchison, Topeka & Santa Fé Railroad Co. v. E. N. Seeley.
    Supreme Court; Practice. Where the question is one purely of fact, yet if there is a total failure of proof to sustain the verdict of the jury, this court will set aside the judgment and remand the cause for a new trial.
    
      Error from Lyon District Court.
    
    Action brought under the stock law of 1874, by Seeley, against the Railroad Company, to recover damages for alleged injuries to plaintiff’s cow. Trial at the March Term, 1880, of the district court, and judgment for the plaintiff. The Railroad Co. brings the case here.
    
      Ross Burns, and W. C. Campbell, for plaintiff in error.
    
      W. A. Randolph, for defendant in error.
   The opinion of the court was delivered by

Horton, C. J.:

This was an action brought under the stock law of 1874, by the defendant in error against the plaintiff in error, for the recovery of damages for the wounding of a cow. It is alleged, that the evidence fails to support the judgment; in brief, that there was an entire failure of proof that the animal was injured by the plaintiff in error in the operation of its railroad, or otherwise.

We have examined-all the record, and find the objection well taken. The evidence is substantially that the cow left home in the morning of a day in September, 1879, in good condition; that she came home in the evening with a bruised hip; that she was accustomed to cross the railroad track every day to go upon' the range, and to return again across the track in the evening; that the owner heard a train about 4 p. M. of the day she was hurt, whistle cattle off the track. No one saw the cow get hurt. No one saw the cow get on the track. No one knew where she got hurt. No one saw her go toward, or come from the track, and no one really knew that she was upon the railroad track the day she was injured. We consider the judgment unsupported -by the evidence, and this is, therefore, of that class of cases in which this court awards a new trial owing to a total failure of proof.

The judgment will be reversed, and a new trial granted.

All the Justices concurring. ■  