
    Brockert v. Central Iowa Railway Company et al.
    
    Railroads: horse killed by train : evidence. Action to recover the value of a mare alleged to have been killed by defendant’s train. The mare was found in a cattle-guard, so injured that she afterwards died. But the evidence (see opinion) failed to show that she was thrown or driven into the cattle-guard or injured by any train, but rather compelled a contrary inference. Held that a verdict for plaintiff should have been set aside as without any support in the evidence.
    
      Appeal from ' Louisa District Court. — Hon. J. K. Johnson, Judge.
    Filed, October 17, 1888.
    Action to recover double the value of a mare alleged to have been killed by a train on defendant’s railroad, at a place where the right to fence existed. There was a judgment upon a verdict for plaintiff. Defendant appeals.
    
      Anthony C. Daly and E. W. Tatlock, for appellant.
    
      Newman & Blalce and Fred Courts, Jr., for appellee.
   Beck, J.

— The mare, to recover the value whereof this action was brought, was found in a cattle-guard of defendant’s road. She was lying partly on her back, with her feet elevated. She was extricated with some difficulty, and afterwards died of the injuries she received. A train had passed on the railroad about five o’clock in the morning before the mare was found in the cattle-guard. There is no direct evidence tending to show that the mare was on or near the road when the train passed; that she was struck by the train ; or was frightened by it, and ran into the cattle-guard in her fright. The marks and injuries on the mare did not indicate that she was struck by the train. The evidence, to our minds, shows that it is impossible that the mare was driven before the train into the cattle-guard ; for, as we understand the facts, it was not so deep that the train could have passed over her while in it without killing her outright, or injuring her in other parts of her body which showed no injury. We think it is impossible that the animal was in the cattle-guard when the train passed, and it is just as impossible that the mare, becoming frightened by the cars, ran after them into the cattle-guard. We think there is absolutely no evidence to support the finding of the jury that the mare was thrown into the cattle-guard by the train. Such a conclusion is against all reasonable inferences arising from the facts of the case. In our opinion, the district court should have set aside the verdict as being utterly unsupported by the evidence. Other questions we do not consider, as our conclusion above announced will probably be decisive of the case.

Reversed.  