When this case was before this court on a former appeal, (46 Hun, 339,) the evidence relating to the question then considered was essentially unlike that given on the last trial. On the former trial there was no evidence that the bar-way had been open for any length of time before the time of the *644accident, while on the last trial there was proof that the bars had been down for at least three months before. As the evidence stood upon the last trial, we do not think the court would have been justified in directing the jury to find a verdict for the defendant, if they found that the horses entered upon the track through the bar-way. But it was conceded by the defendant that if the plaintiff’s horses entered upon the defendant’s track through the burned opening in its fence, plaintiff was entitled to recover in this ease. On the last trial that specific question was submitted to the jury, and they found that the horses entered upon the track through the burned opening in the defendant’s fence. That question was fairly submitted to the jury upon sufficient evidence to sustain their finding, and.the verdict should, we think, be upheld. The jury having found that the horses did not enter upon the track where the defendant claimed they did, it becomes unnecessary to consider what the defendant’s liability might have been if the jury had found otherwise. We have examined the defendant’s exceptions to the rulings and charge of the court, but have found none that would justify a reversal of the judgment, or that require special discussion. Judgment and order affirmed, with costs.