#### Louisville, Evansville & St. Louis Consolidated Railroad Company v. George McCullom.

1. Verdict—An End of Litigation.—Where the circumstances in proof do not amount to a demonstration, but are sufficient to authorize a finding of a question of fact upon a theory of one of the parties litigant, the finding must stand as an end of litigation.

*70Memorandum.—Action for killing domestic animals. Error to the Circuit Court of Wayne County; the Hon. Cabroll C. Boggs, Judge, presiding.

Heard in this court at the February term, 1894,

and affirmed.

Opinion filed June 23, 1894.

Creighton & Kramer, attorneys for plaintiff in error.

Hanna & Hanna, attorneys for defendant in error.

Mr. Justice Scofield

delivered the opinion of the Court.

The only question presented in this case is the alleged insufficiency of the evidence to support a verdict and judgment in favor of defendant in error.

At the point where the steer belonging to defendant in error was killed, the railroad track runs nearly east and west, inclining, however, slightly to the southeast and nortliAvest.

The wagon road runs west on the north side of the rail road track till it reaches the track, then crosses to the south side, and then runs west again. There is a cattle-guard forty-five feet east of the intersection of the two roads, and another 300 feet or more west of that point. The railroad track was not fenced at any point between the cattle-guards at the time when the steer was killed; the line had been open for more than six months, and no part of the road between the cattle-guards was within any city, incorporated toAvn or village, laid out and platted into lots and blocks. Soon kfter the accident the plaintiff in error fenced the track on the west side of the crossing.

The right of recovery is conceded, provided the evidence shows that the steer got upon the track at the unfenced space Aves't of the highway crossing, and wandered or was frightened down the track till struck by the engine. It is urged, however, that the animal, for aught that appears to the contrary, may have gone upon the track at the crossing, in which case plaintiff in error would not be liable, unless there was a failure to give the statutory signal, and such failure caused the accident. There was no eye-witness of the col*71lision. A few minutes before the train passed, a “ cow brute,” in the language of the witness, was standing on the railroad track about 100 feet west of the crossing. Other 'cattle were near this point, but not on the track. Another witness saw where the cattle had gone on the track west of the highway crossing, and still another witness saw where the Cattle had been on the track west of the highway crossing, and still another witness saw where cattle had been on the track about thirty-five or forty feet west of the crossing, and also where some animal, without doubt the steer which was killed, had struck the ground about six or eight feet east or northeast of the crossing, and as the witness expressed it had “ kind of slid.” The train which killed the steer was running east, and the animal was found soon afterward fifteen or twenty feet east of the crossing and twenty or twenty-five feet north of the track.

From these facts and circumstances it was the duty of the jury to find whether or not the steer went upon the track Avest of the crossing where a fence was required by law. Direct and positive evidence, which is not required eAen in a charge of murder, Avould certainly not be required here. While the circumstances proved do not amount to demonstration, they are sufficient to authorize a finding that the steer went upon the track according to the theory of the defendant in error, and that the plaintiff in error is liable for the animal’s sudden demise. The judgment is affirmed.