The evidence tends strongly to establish, that, at the time the horse was killed, the said road, was inclosed by a good and lawful fence, sufficient to exclude the animal from the inclosure within which the accident happened; that the cattle-guard was such as are ordinarily constructed, and was in good repair; that the night on which the horse was killed was rainy and dark, and from the beating of the rain against the head-light of the engine the light thrown forward upon the track was less than usual; that the train had just left *593the station and was moving at a rate not exceeding four miles an hour; that the horse was not seen by the engineer in charge of the train. The place of entry and manner of killing were made probable by the marks at the cattle-guard and the bridge. If the facts were as deduced, we see no reason to reverse the order of the general term granting a new trial. It is not apparent that the horse was killed by the neglect of defendant.

The discretion to award a new trial because the verdict is against the weight of evidence is not confined to the trial court, but may and should be exercised by the appellate tribunal when it is clear that justice has not been done, and it is probable that a new trial will result differently.

Affirmed.