
    The Indianapolis and Cincinnati Railroad Company v. Wharton.
    In a suit against a railroad to recover for stock killed, the allegation that the road was not fenced is a material one, and must be proved, where such fact is an element in the right to recover.
    APPEAL from the Shelby Court of Common Pleas.
   Perkins, J.

Wharton sued the Indianapolis and .Cincinnati Railroad Company to recover for stock killed upon the road by the locomoiives -of the company. The suit was instituted before a justice of the peace.

The complaint alleged that the stock was killed at a point where the road was not fenced. It contained no allegations of other negligence of the company.

The cause went, by appeal, to the Common Pleas. In that Court there was judgment for the plaintiff.

The record contains all the evidence. There was nó proof that the road was not fenced, or of any negligence, in running the locomotives, on the part of the company.

We do not mean to admit that there could legally have been proof, under the complaint, of such negligence. The judgment is not supported by the evidence. The allegation that the road was not fenced was a material one— one on which, after the fact of killing was proved, the plaintiff’s case rested. "Without proving that allegation, he made out no case. As there was no proof going to establish the truth of that allegation, the judgment must be reversed.

J. S. Scobey, for the appellants.

J. B. McFadden, for the appellee.

Per Curiam.

The judgment is reversed with costs. Cause remanded, &c.  