
    Henry Hungerford, Resp’t, v. The Syracuse, Binghamton and New York Railroad Company, App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed November, 1888.)
    
    Railroads—Liability for damages to cattle.
    Plaintiff’s horses strayed upon the defendant’s track and were killed by a passing train. Previously a portion of the railroad’s fence had been burned down by the defendant, leaving an opening on to the track. It was conceded by the defendant that if the plaintiff’s horses entered upon the defendant’s track through the burned opening in its fence, plaintiff was entitled to recover. Held, that the specific question haying been fairly submitted to the jury upon sufficient evidence to sustain their finding, and they having found that the horses entered upon the track through the burned opening in the defendant’s fence, the verdict should be upheld. (See S. C on former trial, 13 IT. Y. State Rep., 304.)
    
      
      William Kennedy, for resp’t; Louis Marshall, for app’lt.
   Martin, J.

When this case was before this court on a former appeal (12 N. Y. State Rep., 204) the evidence relating to the question then considered was essentially unlike that given on the last trial. On the former trial "there; was no evidence that the bar-way had been open for any length of time before the time of the accident, while on the last trial there was proof that the bars had been down for at least three months before. As the evidence stood upon the last trial, we do not think the court would have-been justified in directing the jury to find a verdict for the defendant if they found that the horses entered upon the track through the bar-way.

But it was conceded by the defendant that if the plaintiff’s horses entered upon the defendant’s track through, the burned opening in its fence, plaintiff was entitled to-recover in this case. On the last trial that specific question was submitted to the jury, and they found that the horses, entered upon the track through the burned opening in the defendant’s fence. That question was fairly submitted to the jury upon sufficient evidence to sustain their finding, and the verdict should, we think, be upheld.

The jury having found that the horses did not enter upon the track where the defendant claimed they did, it becomes unnecessary to consider what the defendant’s liability might have been if the jury had found otherwise.

We have examined the defendant’s exceptions to the rulings and charge of the court, but have found none that would justify a reversal of the judgment or that require-special discussion.

Judgment and order affirmed, with costs.

Hardin, P. J., and Follett, J., concur.  