
    Isaac G. Hathaway, App’lt, v. The Fitchburg Railroad Co., Resp't
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed November 22, 1892.)
    
    Justice’s court—Appeal—Negligence.
    In an action in justice’s court for the killing of a horse alleged to have been caused by defendant’s negligence, it was shown that the horse was found on defendant’s track, and that the fence was out of repair at the place where he apparently got through; but there was no proof that any train of defendant had passed during the night. Held, that while the proof might not sustain a recovery, the plaintiff should not be shut out by a mere reversal.
    Appeal from judgment of the Rensselaer county court, reversing judgment of a justice of the peace.
    Action for the alleged killing of plaintiff’s colt Plaintiff owned a farm near Hoosick Junction and defendant’s east bound track run through the same. The Fitchburg railroad runs from Rotterdam Junction to Boston, and is called the Hoosac Tunnel Route, owning the Hoosac Tunnel, through which it passes. The road is one of the main lines from Boston to the west, and runs a great number of trains both day and night.
    The plaintiff was the owner of a certain colt, on or about the 4th day of October, 1889 ; the colt had been running in the field on the northerly side of the track, and was in the field the night of October 4, 1889, with other colts, and was last seen there alive at about six o’clock, and the next morning at about six o’clock the colt was found lying in the ditch dead, and another colt was driven off the track. Plaintiff, at about nine o’clock A. M., found his colt, side of defendant’s track in the ditch, dead ; one leg was cut off, he was cut in a number of places, and badly mangled. Plaintiff, after finding the colt dead, examined the barbed wire-fence along the field where the colt had been running, and he followed the colt’s tracks down the fence to where the wires were down. The staples were gone from two posts. The posts were fifteen or sixteen feet apart; in one post, the second and third, or third and fourth, staples were missing, and in the next post the staple holding the third wire was missing. At this point where the wire sagged there were tracks of an unshod colt, leading from the field through the fence on to defendant’s right of way. The plaintiff could see where the colt had stepped through the fence and eaten the grass, and there was also hair of the same color as the colt that was killed on the barbs of the wire fence.
    The colt that was killed had never been shod. There is ne evidence that the fence was down or out of repair in that field anywhere else than at the point where the wires sagged, and the colt’s tracks led in on to defendant’s right of way. And there was ne evidence that there was any other place where the colt could get through and on to tracks of defendant. The fence at that place had been out of repair for sometime.
    Ho direct evidence was given to show that a train or locomotive had passed over the road between six at night and six in the morning.
    
      George K Greene, for app’lt; T. F. Hamilton, for resp’t
   Herrick, J.

I am not entirely satisfied with the disposition made of this case. It is possible that the plaintiff did not go far enough in his proof in the justice’s court to sustain a recovery, although it seems to me he made out a pretty fair case; but I do not think he should be shut out by a mere reversal. I think he should have an opportunity to get out any thing there is in his case, and that, therefore, the judgment of the county court should be so modified as to grant a new trial in the justice’s court, costs to abide the event. Section 1319, Code of Civil Procedure.

Mayham, P. J., and Putnam, J., concur.  