Indianapolis, Pittsburgh, & Cleveland Railroad v. Irish

Pettit, C. J. This suit was brought by the appellee against the appellant for killing by its locomotive, etc., a horse, where the road was not securely fenced. Proper issues 'were formed, and the case has been twice tried by different judges, with the same result, a finding for the plaintiff. It was once reversed; The Indianapolis, etc., R. R. Co. v. Irish, 26 Ind. 268; but the evidence was different on the trials. On the first there was a diagram of the place- of the killing and its surroundings; on the second no such diagram is in the evidence. The evidence was, in other respects, somewhat different, but mainly the same. The counsel for appellant, in his brief, says, that he offered a diagram, that it was objected to, and the objection sustained, and exceptions taken, but in the bill of exceptions the diagram offered is not set out or made a part of the bill, and we cannot, therefore, take notice of it, The only question in the case is, was the evidence sufficient to justify the finding and judgment? We have above said the case has been twice tried by different judges with the same result, which is a strong indication that the evidence sustains the verdict; but we have examined the evidence, and though there is some conflict in it, we think it strongly preponderates in favor of the finding and judgment; but if we could not see this preponderance in the written evidence, but only that it was conflicting, we could not reverse. The reason of this ruling is so well known to the profession, and has been so often stated and repeated, that we need not refer to the cases. J. A. Harrison, for appellant. W. R. Pierse and H. D. Thompson, for appellee. The judgment is affirmed, at the costs of the appellant, with ten per cent, damages.