#### The Toledo, Wabash and Western Railway Co. v. Andrew Nelson.

Negligence—liability of railroad for hilling stock. In a suit against a railway company to recover damages for the killing of the plaintiffs cow, where the evidence tended to show that the cow got upon the track of the company through the negligence of its servants in failing to keep a gate at a farm crossing in repair, it was held, that a verdict finding the company liable would not be disturbed.

Appeal from the Circuit Court of Ford county; the Hon. Thomas F. Tipton, Judge, presiding.

This was an action commenced by Andrew Nelson, against the appellant, before a justice of the peace, to recover damages for the killing of the plaintiff's cow, and taken by appeal to the circuit court. On a trial in the latter court the plaintiff recovered judgment for $40 and costs, and the railway company appealed.

Mr. O. T. Reeves, for the appellant.

Mr. A. Sample, for the appellee.

Mr. Justice Scholfield

delivered the opinion of the Court:

The evidence tends to show that the cow got upon the track of appellant's road through the negligence of its servants in failing to keep a gate at a farm crossing in repair. The jury found specially that this was the fact, and we are not able to say, from an examination of all the evidence in the record, that this finding was so clearly the result of prejudice and passion as to justify us in disregarding it, and setting the verdict aside.

In this view of the case, even conceding that the modification of appellant’s instruction.is liable to the objection urged *161against it, it could not have prejudiced appellant, for the instruction, as asked, and as modified by the court, has no application to the case, save upon the hypothesis that the cow was upon the track of appellant’s road without the fault of its servants.

The judgment is affirmed.

Judgment affirmed.