The action is by the appellee (plaintiff) to recover damages of the appellant (defendant) for killing a mule. The case was tried before the court without a jury, and judgment rendered for plaintiff, from which judgment the defendant appeals. After a careful examination of all the evidence, we are of the opinion that the court committed error in rendering judgment for the plaintiff. The evidence offered by the plaintiff failed to make out a case, and the only reasonable deduction from the evidence as a whole is that the animal in question received its injuries by having fallen through the trestle of the defendant company while trying to walk across the trestle. The evidence of the defendant affirmatively shows that the animal was not struck by any train of the defendant, and the physical facts showing the position of the mule when found on the trestle with its legs between the ties, and the mule being alive and "bawling," as expressed by one of the witnesses, precludes the possibility of its having been struck by a train. To the contrary, these facts clearly *Page 423 substantiate the contention of the defendant that the mule was injured by trying to walk the trestle and by falling through it, in which condition it was found by the train crew and others, and was by them lifted from the trestle and carried off of the track and laid upon the ground. The judgment rendered for plaintiff is reversed, and a judgment is here rendered in favor of the defendant.
Reversed and rendered.