adjoining land owners to place their cattle near the said track in unfenced fields. Curry v. Chicago & N. W. R. Co., 43 Wisc. 665; Balt. & O. R. Co. . Lamborn, 12 Ind. 257; Keech v. Balt. & W. R. Co., 17 Ind. 32; Eames v. Salem & L. R. Co., 98 Mass. 560; Gribble v. Sioux City, 38 Iowa, 390; Kansas City, Fort Scott, etc., R. R. v. McHenry, 24 Kans. 501.

But there are other cases which hold the contrary. Corwin v. New York & Erie R. R. Co., 13 N. Y. 42; Flint & P. M. R. Co. v. Lull, 28 Mich. 510; Louisville, N. A. & C. R. Co. v. Cahill, 63 Ind. 340; Louisville, N. A. & C. R. Co. v. Whitesell, 68 Ind. 297; Ohio & M. R. Co. v. Fowler, 85 Ill. 21; McCoy v. Cal. Pacific R. Co., 40 Cal. 532; Shephard v. Buffalo, N. Y. & E. R. Co., 35 N. Y. 641; Mead v. Burlington & Lamoille R. R. Co., 52 Vt. 278; Dunkirk & Allegheny Valley R. R. Co. v. Mead, 90 Pa. St. 454; 1 Am. & Eng. R. R. Cas. 166; Grand Rapids & Ind. R. R. Co. v. Cameron, 45 Mich.

451.

In actions against a railroad company to recover damages for injuries occasioned by the failure of the company to fence in accordance with the provisions of a statute, it is incumbent on the plaintiff to show (1) that there has been a failure to fence, and (2) that the cattle injured came on the track at the point where the track has been left unfenced. Having proved thus much, he is entitled to recover. Lawrence v. Milwaukee, L. S. & W. R. Co., 42 Wisc. 322; Lantz v. St. Louis, K. C. & N. R. Co., 54 Mo. 228; Small v. Chicago, R. I. & Pacific R. Co., 50 Iowa, 338; Rockford, R. I. & St. Louis R. Co. v. Lynch, 67 Ill. 149; McCoy v. California Pacific R. R. Co., 40 Cal. 532; Cunningham v. Hannibal & St. Jo. R. R. Co., 70 Mo. 202.

If, as has been seen, the cattle came upon the track at the point where there was no obligation to fence, the plaintiff must further prove negligence on the part of the company. Proof of the injury does not constitute evidence of negligence per se. Peoria, Decatur & E. R. Co. v. Dugan, 10 Ill. App. 233; Lyndsay v. Conn. & P. R. R. Co., 27 Vt. 643; Waldron v. Portland, S. P. R., 35 Me. 422; Peoria, P. & J. R. Co. v. Barton, 80 Ill. 72; Schneiro. Chicago, R. I. & Pac. R. R. Co., 40 Iowa, 337; Bethje v. Houston & C. T. R. Co., 26 Tex. 604; Walsh v. Va. & T. R. Co., 8 Nev. 110; Cincinnati, H. & I. R. Co. v. Bartlett, 58 Ind. 572; Doggett v. Richmond & D. R. Co., 81 N. C. 459; New Orleans, T. & G. R. Co. v. Enochs, 42 Miss. 603; Locke v. St. Paul & P. R. Co., 15 Minn. 350; Grand Rapids & I. R. Co. ⚫. Judson, 34 Mich. 506. Contra, Roof v. Charlotte, C. & C. R. Co., 4 S. C. (N. S.) 61; Smith v. Eastern R. Co., 35 N. H. 356; Woolfolk v. Macon & A. R. Co., 56 Ga. 457.

But in some States the injury itself is by statute made prima facie evidence of negligence. Kentucky Cent. R. R. Co. v. Lebus, 14 Bush. 518; Atlantic & G. R. Co. v. Griffin, 61 Ga. 11; Keech v. Balt. & W. R. Co., 17 Ind. 32; Mobile & O. R. Co. v. Williams, 53 Ala. 595; L. R. & F. S. R. Co. v. Payne, 33 Ark. 816; Memphis & C. R. Co. v. Smith, 9 Heisk. 860; Kentucky Cent. R. Co. v. Talbot, 78 Ky. 621.

Where the cattle in question are killed or so seriously damaged as to be practically worthless, the measure of damages is the value of the animals at the time of the injury. Toledo, etc., R. Co. v. Johnston, 74 Ill. 83; Lapine D. New Orleans, etc., R. Co., 20 La. Ann. 158; Indianapolis, etc., R. Co. v. Mustard, 34 Ind. 51.

The statutes, however, in some cases impose a penalty of double damages. See Fontaine v. Southern Pacific R. Co., 1 Am. & Eng. R. Cas. 159.

SMITH

V.

INDIANAPOLIS AND ST. LOUIS R. R. Co.

(Advance Case, Indiana. April 17, 1882.)

The evidence of witnesses who are familiar with stock of a description similar to that which was killed is competent. It is immaterial whether they have seen the identical stock for which the action is brought or not.

BICKNELL, Com.-The appellants brought this suit against the appellee to recover damages for killing two cows of the appellants and crippling another. There was a trial by jury with a verdict for appellants for $120. There was a motion by appellants for a new trial, because the verdict was too small, and because the witnesses for the appellee were permitted to answer certain questions as to the value of the property. The overruling of this motion is the only error assigned. The objections to the questions were that they were irrelevant, immaterial and incompetent, and that the witnesses were not experts and had no peculiar knowledge as to the value of milch cows.

The appellants' counsel insists in his brief that because the witnesses had never seen the cows in controversy, therefore they were incompetent to state the value of cows of that kind. But that is not the rule; a witness may be competent to testify as to the value of property, animate or inanimate, although he may have never seen it. The testimony of a witness competent in other respects, who has also inspected the property in controversy, may be entitled to more weight upon the question of value. That, however, relates not to competency but to credibility.

There were four witnesses for the appellee whose testimony as to value was objected to.

The value under investigation was the value of milch cows. Asher Kellum was a dairyman; he kept good milch cows, and bought and sold them frequently. E. H. Staughan had attended cattle sales, was an auctioneer, was acquainted with the traffic, and used to ship some. Henry Pearson was a farmer, keeps cows, has bought and sold them, keeps milch cows all the time. Hugh J. Jessup was township assessor; he was experienced in examining and pricing milch cows.

We have proved by the appellants' witnesses that one of the cows killed was a good milch cow, ten years old, without a calf, and weighing about twelve hundred pounds. The question put to each of the above named witnesses for the appellee was substantially the same, to wit: What would be the price of a good milch cow,

ten years old last spring, without a calf, and weighing about twelve hundred pounds? There was no valid objection to this question. The description of the cow having been given by appellants' witnesses, these witnesses of the appellee had knowledge enough to testify as to the value of that sort of a cow. City of Indianapolis v. Huffer, 30 Ind. 235, 237. .In the case of Bowen v. Bowen, 74 Ind. 470, this court said: "The witnesses who fixed an estimate upon the value of the services were shown to have some acquaintance with the value of services such as those rendered by the appellee. Where a witness shows himself acquainted with values his testimony is competent."

In the case of Johnson v. Thompson, 72 Ind. 167, this court said: "The authorities recognized a well-defined distinction between the opinion of a witness as to the amount of damages sustained in a given case, and his opinion as to the value of a service or commodity concerning which he has been called upon to testify."

Non-experts may give their opinions on questions of "identity, resemblance, apparent condition of body or mind, intoxication, insanity, sickness, health, value, and the like." Johnson v. Thompson, 72 Ind. 167; County Board v. Chambers, 76 Ind.

In the case of Hollen v. The County Board, 55 Ind. 194, this court said: "The court permitted one McWilliams, a witness, to give his opinion of the value of improvements made upon the farm. He appears to have been a person considerably experienced in the matter about which he testified, and was competent to give his opinion. But the rule is that any witness who knows the facts personally may give his opinion, stating also the facts upon which he bases his opinion."

The testimony of a person who has a personal knowledge of the very property in controversy, and also the necessary knowledge and information to enable him to form a proper estimate of its value, may be entitled to more weight; but a witness may be competent to testify as to the value of a certain description of property or services without having seen either the identical piece of property in controversy, or the actual performance of the services in controversy. There was evidence tending to support the verdict. We cannot say the damages were too small without determining the preponderance of the testimony, and with that we have nothing to do. Cosby v. Anderson, 74 Ind. 600.

There was no error in overruling the motion for a new trial. The judgment of the court below ought to be affirmed.

Per CURIAM.-This, therefore, ordered upon the foregoing opinion that the judgment of the court below be and is hereby in all things affirmed at the cost of the appellants.

CHICAGO, ST. LOUIS AND NEW ORLEANS R. R. Co.

Plaintiff proved the killing of a horse by the railroad. The railroad company admitted the killing and proved that it was unavoidable, and that the company's servants were not guilty of negligence. Jury found for plaintiff. On appeal the verdict was set aside.

CHALMERS, C. J.-Plaintiff brings suit against the railroad company upon a demand for damages for killing a horse which demand has been assigned to him, since the killing, by the then owner of the animal killed. The ancient doctrine was that a demand arising out of a tort was not assignable, but the modern cases restrict the principle to torts against the person, or to such as did not survive to the personal representative after death, such for instance as slander, assault and battery, seduction, and the like. Torts to property on the other hand, whereby the estate of a party is destroyed or diminished, are now held assignable either by the act of the party or by general assignments by operation of law, and the doctrine is recognized both in England and America.

The claim being assignable and the transfer having been made in writing the assignee had the right to bring the suit in his own name. Code of 1880, sect. 1507; Butler v. R. R. Co., 22 Barb. 110; Jordan v. Gillen, 44 N. H. 424; Whitaker v. Gavitt, 18 Conn. 522. Section 1059 of the code of 1880 provides that where satisfactory proof has been made of injury to person or property by the running of the locomotives of a railroad company, it shall be prima facie evidence of negligence on the part of the railroad company. This of course throws on the company when sued, and when such evidence has been adduced, the burden of rebutting this presumption, and of establishing by evidence that there had been no negligence on the part of its employees.

In the present case the plaintiff sufficiently established the killing of the animal by the locomotive of the defendant corporation. Though no witness was brought forward who saw the killing, the position of the carcass when found and all the surroundings plainly indicated that the horse had been killed by the trains of the company. Having made this proof the plaintiff rested without making any proof whatever other than that relating to the finding of the body and the marks of the animal upon the track of the railroad.

Defendant then, by his engineer and fireman, showed the actual facts attending the killing, which it was admitted had been done

by defendant's locomotive, and rebutted, as we think, the presumption of negligence, by affirmatively showing the exercise of all necessary care and caution on its part. The accident, according to the testimony of these witnesses, was unavoidable. The jury notwithstanding found a verdict for plaintiff. There was nothing improbable in the story told by the witnesses for the defendant, nor was there anything at all inconsistent with it in any fact proved in the case on either side. There is nothing in the record to suggest that the witnesses were unworthy of credit, or that the jury in fact disbelieved them.

It seems to be, so far as we can see, a case where each side has met the burden imposed by law upon it, and in which there is no conflict in the testimony of the witnesses. Where this is so, the verdict should be for the defendant, and a contrary one will be set aside by the court.

The exact question is met and decided in Young v. Wilson, 24 Miss. 694, in which a verdict for the plaintiff was set aside under similar circumstances. The court say that it is not a question of credibility of witnesses nor of conflict of testimony, but one in which the plaintiff having made out his case is met by proof on the other side, not in denial of his, but which, admitting the absolute truth of everything proved by him, goes further and nullifies its effect by proof of other facts which demonstrate that he has no right to recover. The plaintiff closes when he has made out his case. The defendant responds, not by denials or conflicting evidence, but by proving something additional which negatives his right to recover. This is equivalent to a confession and avoidance in pleading. If not met by further proof, and if there be nothing to suggest its falsity or the unworthiness of the witnesses, it must compel a verdict for the defendant.

Reversed and new trial granted.

KENTUCKY CENTRAL R. R. Co.

V.

TALBOT, etc.

(78 Kentucky Reports, 621. September Term, 1880.)

Under the statute declaring that the killing or damaging of stock by the cars of a railroad company shall be prima facie evidence of negligence, the uncontradicted and unimpeached testimony of such employés of the company as are presumed to know the facts that there was no negligence, overcomes the prima facie case of the plaintiff, and he cannot recover.

W. BRYAN, for appellant.

In an action against a railroad company alleging the negligent