#### Clarence Swango, Appellee, v. Cleveland, Cincinnati, Chicago and St. Louis Railway Company, Appellant.

(Not to he reported in full.)

Abstract of the Decision.

Rah.roads, § 874 * —when evidence insufficient to show a defective gate at farm crossing. In an action against a railroad company for damages occasioned by the killing of plaintiff’s stock alleged to have escaped upon defendant’s right of way by reason of a defective gate constructed by defendant at a farm crossing, evidence held insufficient to sustain a verdict for plaintiff, it appearing that the gate was open when the stock escaped, that the gate was of the *208usual pattern of sliding gates, made of good material and of sufficient height, and that the only objection to the gate was that it was lower at the “hinge” end than the other so that it could easily slide back and might be opened on account of wind or by horses rubbing against it, there being no evidence to show that the gate was thus opened but there was evidence to show that it had not been thus opened for a period of five years.

*207Appeal from the Circuit Court of Edgar county; the Hon. E. R. E. Kimbrough, Judge, presiding.

Heard in this court at the April term, 1913.

Reversed with finding of fact.

Opinion filed October 16, 1913.

Statement of the Case.

Action by Clarence Swango against the Cleveland, Cincinnati, Chicago and St. Louis Railway Company to recover damages for the injury to plaintiff’s horses which had escaped through a gate at a farm crossing upon defendant’s right of way and were struck by defendant’s locomotive and train. From a judgment in favor of plaintiff for six hundred and ninety dollars, defendant appeals.

George B. Gillespie, for appellant; R. J. Carey, Shepherd & Trogdon and Gillespie & Fitzgerald, of counsel.

F. E. Shopp, for appellee; F. C. Van Sellar, of counsel.

*

See Illinois Notes Digest, Vols. XI to XV, same topic and section number.

Mr. Justice Creighton

delivered the opinion of the court.