This suit was brought by the appellee against appellant to recover $200 damages for killing a mule by one of its engines on its railroad track. The defense to the action was that the animal was killed where a public road crosses the railroad track, which it was not permitted or required to fence. There was a judgment in favor of plaintiff for the amount of damages sued for.
The facts of ownership of the mule and her being killed by appellant's engine were shown by the undisputed evidence. The only issues of fact were the value of the mule and whether she was killed at a public crossing. These issues were submitted to the jury on a proper charge, and found in favor of plaintiff. The complaint of defendant is that the evidence shows conclusively that the animal was killed at the crossing, and all the assignments are predicated upon this theory. We do not believe the evidence takes this question from the realm of fact and makes it a matter of law. Hence we overrule all the assignments, and affirm the judgment.
Affirmed.