The testimony for the defendant tended to show that the killing of the mules was an unavoidable accident.The grounds for nonsuit were, that as to the bay mule the case should be dismissed because it appeared not to be the plaintiff’s property; and that the testimony failed to show that the mules had been killed by the defendant’s cars.The grounds for new trial, in addition to those alleging that the verdict is contrary to law and evidence, are: The court refused to permit the engineer to answer the question, “What could you have done with the appliances at hand on the engine, after discovering the mules, that would have prevented the striking of them ? ” The court charged the jury, that if the plaintiff' swapped a colt belonging to his wife for one of the mules alleged to have been killed by the defendant’s train, and paid $25 in addition, he would be entitled in this suit to recover his interest in the mule, if under the evidence and law he is entitled to recover at all.Dessau & Bartlett and R. V. Hardeman, for plaintiff in error.No appearance contra.
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