The defendants Avere liable for the killing of the plaintiff’s steer, if they did kill it, because they had not fenced their road, “ Avith openings or gates or bars therein” at the plaintiff’s farm crossings, and had not constructed cattle guards sufficient to prevent cattle from getting on to their railroad. Laws of 1850, chap. 140, § 44; Laws of 1854, chap. 282, § 8; Staats v. H. R. R. R. Co., 3 Keyes, 196; Corwin v. Erie Railway, 13 N. Y. 42; Tracy v. T. & B. R. R. Co., 38 id. 433.
The liability does not depend upon any consideration of negligence of defendant, or contributory negligence of plaintiff.
We think the evidence sufficient to show that the defendant's locomotive killed plaintiff’s animal.
The train was heard to brake up late m the afternoon, at the place where the animal Avas found dead the next morning, on the north side of defendant’s track, AvRere marks in the dirt indicated that the steer had been dragged along after being struck. • Blood was found on the north rail, and on the cross ties.
The plaintiff was, under objection, permitted to ask this question : “ Where was the steer when the train struck him, as indicated by the marks on the ground and track ? ”
This question called for a legitimate fact, and not for the opinion of the witness.
The judgment should be affirmed, with costs.
Judgment affirmed.