
    The Toledo, Wabash and Western R. W. Co. v. Craft.
    
      Pleading. — Practice.—Harmless Error. — The sustaining of a demurrer to a. sufficient paragraph of a pleading is harmless, where the same matter is; alleged in a remaining paragraph.
    From the Wabash Circuit Court.
    
      W. Z. Stuart, C. B. Stuart and T. A. Stuart, for appellant.
    
      A. Taylor, for appellee.
   Biddle, J.

Complaint by the appellee, against the appellant, for killing a horse by running the appellant’s locomotive and cars upon and over it, at a point where the railroad track was not securely fenced.

The appellant answered by a general denial and a second, third, fourth and fifth special paragraph.

The court sustained a demurrer to the second paragraph* upon the ground that it did not state facts sufficient to constitute a defence. The appellant excepted.

It seems to us this ruling is erroneous, but the fifth paragraph, upon which issue of fact was taken, set up the; same defence as that pleaded in the second paragraph.. The error, therefore, became harmless.

Trial by jury; verdict for appellee; motion for a new trial; overruled; exceptions; judgment; appeal.

The record presents no additional question, except as to the sufficiency of the. evidence to uphold the verdict.

We have examined the evidence carefully. It tends towards proving all the facts necessary to sustain the verdict. We can not, therefore, disturb the judgment simply upon the question of evidence.

The judgment is affirmed, at the costs of the appellant.  