#### St. Louis, Alton & Terre Haute Railroad Company v. Giles Nelson.

Railroads—Negligence — Injury to Stock—Hog—Evidence — Instructions.

An instruction not based upon evidence adduced should be refused.

[Opinion filed January 15, 1892.]

Appeal from the Circuit Court of Williamson County; the Hon. George W. Young, Judge, presiding.

Messrs. Clemens & Warder, for appellant.

Mr. Joseph W. Hartwell, for appellee.

Phillips, P. J.

Appellee brought suit before a justice of the peace, to recover damages for the value of a hog killed by appellant’s train. The case was appealed to the Circuit Court, where a trial was had and a verdict and judgment was entered for appellee for §12. From the evidence in this record no one saw the injury inflicted. The evidence shows that the hog was killed at Bainbridge station, and was found lying between the side and main track shortly after the train on appellant’s road passed, running at a rate of speed of from twenty to twenty-five miles per hour. Ho ordinance is shown limiting the speed of trains. Ho bell was rung or whistle sounded on the engine pulling the train as it approached the station. Whether the hog was on the track or in such proximity to the track as the train approached the point where it was killed, that it could have been seen from the engine by the use of reasonable diligence, is not shown. From anything appearing in this record, it may have suddenly come on the *607track from a point where it could not have been seen from the engine. There is no negligence on the part of appellant’s servants shown; hence there was no evidence on which to base an instruction given for the plaintiff as follows: “The court instructs the jury on the part of the plaintiff, that if they believe, from the evidence in this case, that the engine driver of the defendants’ railroad, by the use of ordinary skill and prudence, could have seen the plaintiff’s hog spoken about by the plaintiff’s witnesses, or that lie did see the hog, and that he might without danger to the train, by the use of ordinary care, have stopped the train before striking the hog, and did not do so, then you should find for the plaintiff, and assess his damages at such sum as you believe, from the evidence, he is entitled to.” It was error to give this instruction under the facts appearing in this record. The judgment is reversed and the cause remanded.

Reversed and remanded.