#### Terre Haute & I. R. R. Co. v. Stephen Cutright.

1. Verdicts—When to be Sustained.—When the record shows sufficient evidence to warrant the action of the jury the verdict will not be disturbed.

Action for Killing Domestic Animals.—Appeal from the Circuit Court of Cumberland County; the Hon. Silas Z. Landes, Judge, presiding.

Heard in this court at the May term, 1895.

Affirmed.

Opinion filed November 15, 1895.

L. H. Brewer and T. J. Golden, attorneys for appellant.

P. A. Brady, attorney for appellee.

Mr. Justice Wall

delivered the opinion of the Court.

This is an appeal from a judgment for the value of a hog, said to have been killed by the appellant company’s train on its road. The negligence relied on by .the plaintiff was the failure to fence. The evidence certainly supports that charge, and the only ground for contention is whether there is sufficient proof that the animal got on the track by reason of such defect in the fence, and whether it was struck by a train or locomotive or whether it received its injury in some other way.

We have examined the record and find there was some confusion during the trial, many objections being made by counsel, and that the testimony of the plaintiff and other witnesses appears in a somewhat disjointed and irregular condition. Yet we think there was enough to warrant the jury in concluding that the hog got on the track at a point where *179the company was bound to maintain a fence and had not done so. It also appears that the animal had been dragged from the track and was found a few feet therefrom so badly injured that it had to be killed.

This was done by the section foreman and he buried it.

The evidence, while not conclusive, makes a prima facie case which will suffice in the absence of rebutting proof.

The judgment is affirmed.