
    George E. Craft, Respondent, v. Peekskill Lighting and Railroad Company, Appellant.
    Second Department,
    October 18, 1907.
    Railroad— injury to straying animal — failure of proof.
    Mere proof that the plaintiff’s cow straying upon the highway at night was killed by the defendant’s electric car does not establish the defendant’s negligence.
    Hooker, J., dissented.
    Appeal by the defendant, the Peekskill Lighting and Railroad Company, from a jndginent of the County Court of Westchester county in favor of tlie plaintiff, entered in the office of the cleric of' said county on the 6tli day of April, 1907, upon the verdict of a jury for seventy-five dollars, and .also from an order bearing date the 22d day of March, 1907, and entered in said clerk’s office denying the defendant’s motion for a new trial-made upon the minutes.
    
      Nathan P. Bushnell, for the appellant.
    
      Eugene B. Travis, for the respondent.
   Gaynor, J.:

The plaintiff’s cows strayed along the country highway, at night, and one of them was-killed by.the defendant’s electric car thereon while crossing in front of it. That the cow was killed is riot.enough to prove that the defendant was negligent and therefore liable. And yet that is all this verdict is based on. The .plaintiff gave no evidence of how the thing happened. The defendant called the niotorman, who testified that the cow suddenly appeared before him about to cross the track 30 feet ahead. He did all he could to stop his car but could not stop it in time. ’ The plaintiff’s lack of evi-. deuce cannot be eked out by saying the motorman’s evidence is improbable, or colored, or does not seem to be truthful; there must be evidence to support the verdict. It may well be that the cow did what we well know from our experience here that Iranian beings often do, viz., suddenly went upon. the track. We may be able to see that if she had been walking along the track for a. considerable distance the motorman should have seen her in time; but we have no such case here (Dettmers v. Brooklyn Heights R. R. Co., 22 App. Div. 488).

The judgment should be reversed.

Jenks, Rich and Miller, JJ., concurred; Hooker, J., dissented.

Judgment and order of the County Court of Westchester county reversed and new trial ordered, costs- to abide the event,  