
    The Pittsburgh, Cincinnati, and St. Louis Railway Co. v. Keller.
    
      RaHiKOAd.—Killing Animal.—Pleading.—Fence.—In a complaint, under the statute, against a railroad company for the value of hogs killed by a ' passing train, it is not sufficient to allege, in regard to the- fence, “that said railroad was not, at the time and place where said animals were killed, fenced in by said defendant in manner and form as in the statute provided.”
    From the Madison Circuit Court.
    
      N. 0. jRoss and IT. _D. Thompson, for appellant.
    
      F. Lake and-Kilgore, for appellee.
   Worden, J.

This was an action by the appellee against the appellant, to recover the value of certain hogs, alleged to have been killed by the appellant’s locomotive and cars, upon her road at a point where it was not fenced. Issue, trial by the court, finding and judgment for the plaintiff.

The defendant below moved in arrest of judgment, but the motion was overruled, and exception taken. This ruling is assigned for error. It is also assigned for error that the complaint does not state facts sufficient to constitute a cause of action.

The objection to the complaint has reference to the allegation in respect to the fencing of the road. The following is the allegation:

That said railroad was not, at the time and place where said hogs were killed, fenced in by said defendant in .manner and form as in the statute provided.”

In the case of The Indianapolis, etc., R. R. Co. v. Bishop, 29 Ind. 202, it was held that substantially such an allegation was insufficient, as averring a legal conclusion and not a fact. The allegation is not that the road was not securely fenced, but that it was not fenced in “ in manner and form as in the statute provided.” The case cannot be distinguished from that in 29 Ind. The last named case was followed in the cases of The Indianapolis, etc., R. R. Co. v. Robinson, 35 Ind. 380, and The Jeffersonville, etc., R. R. Co. v. Underhill, 40 Ind. 229. See, also, The Pittsburgh, etc., R. R. Co. v. Brown, 44 Ind. 409. On these authorities, we must hold the complaint insufficient.

The judgment below is reversed, with costs, and the cause remanded, with instructions to the court below to sustain the motion in arrest of judgment.  