delivered the opinion of the Court:
This was an action on the case brought by appellee against appellant to recover for injury to stock, occasioned by their engine and cars running upon their road. It is averred, as the law requires, that the road had been open for use more than six months previous to the time the injury was inflicted, and that it thereby became the duty of the road at the place where the accident occurred, to erect and maintain a sufficient fence to prevent stock from getting upon the track of the road, but that they had neglected to perform that duty, whereby the injury occurred. This averment was material and should have been proved to authorize a recovery.
We have carefully examined this entire record, and fail to find any proof of this averment. In the absence of such evidence, the verdict of the jury cannot be sustained; and the court below erred in refusing, for that reason, to set it aside; and, for this error, the judgment must be reversed and the cause remanded.
Judgment reversed.