Opinion by
Ellison, J.This is an action for double damages under section 809, Bevised Statutes 1879. The following is the evidence as shown by the record in the case: "The plaintiff, to maintain the issues on his part, offered evidence tending to prove that on the 13th day of May, 1882, a certain cow, the property of plaintiff, strayed upon- the track of defendant’s railroad, at a point in Union township in said county, where the same passes through uninclosed lands, and not at a public or private crossing, and that while so upon said railroad track, said cow was struck .and killed by the engine and cars of defendant; that ■said cow was of the value of' $45, and that the fence, at the point where said cow so got on defendant’s track was down, so that the top wire thereof rested upon the ground for the space of about twenty feet, and that said cow was tracked from said gap in said fence at which she got upon the right of way to where she was killed. This was all the evidence in the case.” It thus appears that the cow got upon the track where the road was fenced, but “the fence, at the point where said cow so got on defendant’s track was down, so that the top wire thereof rested upon the ground for the space of about twenty feet.”
It nowhere appears how long the fence had been down. It does not appear the defendant had notice of its being down. It does not appear that it had been down sufficient length of time for the defendant by diligence, to have known it was not in repair.
"We cannot permit a judgment founded on this evidence to stand in the face of the decision of the supreme court in the case of Clardy n. St. L., I. M. & S. Ry. Co., 73 Mo. 576; Morris v. Ry. Co., 79 Mo. 367.
The demurrer to the evidence should have been sustained ; judgment reversed and cause remanded.
All concur.