delivered the opinion of the Court:
The motion for a new trial, made on behalf of appellant, defendant below, should have been granted. The action was brought by appellee upon the statute of 1855, concerning the fencing of railroads, for killing her horse.
The bill of exceptions contains all the evidence, which we have carefully examined. The evidence introduced on behalf of plaintiff, "scarcely tended to show a cause of action, while that for the defense clearly established the fact of the entire sufficiency of the fences; that the horse was killed at the crossing of a public road where the company had constructed and maintained suitable cattle guards, and that he got upon the track from the road. Under such a state of facts the appellant could not be held liable, except upon the ground that the act was wilful or the result of negligence, as to which there was no evidence whatever.
For the error in denying the motion for a new trial, the judgment will be reversed and the cause remanded.
Judgment reversed.