#### The Ohio & Mississippi Railway Company v. M. D. Gross.

Railroads—Injury to Stoch.

In an action brought to recover from a railroad company for the killing of a hog upon its track, this court holds that there was no evidence of negligence upon the part of the servants managing the train in question, and that the judgment for the plaintiff can not stand.

[Opinion filed October 27, 1891.]

Appeal from the Circuit Court of White County; the Hon. C. S„ Congee, Judge, presiding.

Messrs. Pollard & Werner and Wentworth Terry, for appellant.

Mr. N. Holderby, for appellee.

Green, J.

This suit was brought to recover the value of a hog, killed on the switch track or “ Y” of defendant, within the depot limits of the station of Enfield. The animal was trespassing upon the right of wav and switch track, and at a place where defendant was not required to fence its right of way, at the time it was killed. The train was being backed up the switch at a very slow rate of speed, in a careful manner, and for a necessary purpose, when the animal stepped in front of the approaching car and was run over and killed. Those in charge of the train did not see it, and there was no evidence of negligence by those managing the train, to establish defendant’s liability. Hence there was no legal cause of action. The judgment is reversed and the cause is remanded.

Judgment reversed.