Plaintiff recovered $200 in this action of defendant for an alleged injury hy a railway train to his horse. No question is made as to the rulings of the court, and"instructions given to the jury. The errors assigned relate to the refusal of the court to order a new trial, upon a motion of defendant, based upon the insufficiency of the evidence to sustain the verdict. We think the verdict should, have been set apide, as there is an entire absence of proof that the horse was injured by the train upon defendant’s road. Witnesses testify that the horse' was seen by them running before the train. When found afterward, his leg was broken, but no one pretends to have seen the injury inflicted by the train. On the contrary, the engineer in charge of the locomotive at the time testifies positively that the horse was not injured by the train. Admitting the liability of defendant, in case the injury had been satisfactorily proved to have been inflicted by the train, we are of the opinion that there is an entire failure of proof upon this point, and the motion for a new trial should have been sustained.
Reversed.