The evidence in behalf of the plaintiff established a right to recover ; and though the testimony of the defendant’s witnesses, if credible, made out a complete defense, yet as there was a conflict between their testimony and that of a witness for the plaintiff upon a material point, the former swearing that the animal killed did not get upon the railroad-track until the locomotive was within ten or fifteen feet of the place where the animal came upon the track, and the latter testifying that the animal was on the track when the train was seventy-five or one hundred yards distant from it, the verdict against the company was not unwarranted. In such a case the jury are authorized, because of the conflict, to reject the testimony in behalf of the defendant and base their finding on that introduced by the plaintiff.
Judgment affirmed.
All the Justices concurring, except Lewis, J., absent.