
    Robert V. Alexander vs. Chicago, Milwaukee & St. Paul Railway Company.
    October 26, 1889.
    Kailway — Fence.—Evidence held to sustain a verdict.
    Plaintiff brought this action in the district court for McLeod county, to recover the value of 27 sheep and lambs killed on defendant’s track by a passing train at a point where there were no fences. At the trial before Edson, J., a principal issue was whether a lawful fence (of four wires, “the top wire not more than 56 inches high, and the bottom wire not less than 16 inches nor more than 20 inches from the ground”) would have kept the animals from the track. The plaintiff had a verdict of $90, and the defendant appeals from an order refusing a new trial.
    
      G. M. Nelson, for appellant.
    
      B. H, McClelland, for respondent.
   Gileillan, C. J.

In this case the animals killed (sheep) were of a species that might be turned by a lawful fence. The evidence does not conclusively show that such a fence would not have turned them. It was therefore for the jury to find whether the failure of defendant to have along its road a fence such as the law requires was the cause of the injury. The error, if there was any, in excluding certain questions on cross-examination, was cured, for the subject-matter of such questions was fully gone into, not only by other witnesses, but by the plaintiff when he was recalled.

Order affirmed.  