Indianapolis & Cincinnati Railroad v. Stallman

Per Curiam. Suit for an animal killed; and averment that the road was not fenced. Judgment for the plaintiff. Motion for a new trial, on the ground that the verdict was contrary to the evidence. The trial was by the Court. The evidence is in the record. There does not appear to have been any proof of the allegation that the road was not fenced. It appears to be conceded in the brief of the appellee, that the evidence is not sufficient upon the point indicated; but it is insisted, that the appellant is not in a position to take advantage of the apparent lameness of proof, because the [206] reasons filed for a new trial do not touch the finding of the Court. We are referred to 14 Ind. 89. J. 8. 8cobey, for the appellant. James T. Brown and E. Dumont, for the appellee. We are of opinion that the error complained of was included in the cause assigned for a new trial. The judgment is reversed, with costs. Cause remanded, &c.