— This action was brought by Coleman P. Crouse and his mother to recover damages occasioned by the killing of certain sheep and the injury of other sheep owned by *494them. While the case was pending the death of the mother was suggested and her administrator was substituted in her stead. There was a verdict and judgment for plaintiffs.

Appellant’s motion for a new trial was overruled and this action of the trial court constitutes the basis of the only error assigned on appeal. The motion for a new trial was based on several grounds but the only one presented on appeal relates to the sufficiency of the evidence' to sustain the verdict. The complaint is in two paragraphs, the first of which is based upon the negligent operation of one of appellant’s traction cars by its servants in charge whereby it was run upon and over the sheep belonging to appellees while they were on the track in plain view of the motorman in charge of the car; the second paragraph alleges that the servants of appellant intentionally and willfully ran the car upon and over the sheep thereby causing the damage complained of.

1. Appellees make no claim that the evidence sustains the second paragraph of complaint so that may be passed without further mention. As to the first paragraph, the evidence most favorable to appellees shows that one of the appellees owns a farm on the north side of the National Road near Knightstown, and that a flock of sheep owned by appellees was kept, in a pasture field on this farm adjacent to the road. The traction line of appellant ran past this farm on the south side of the National Road and entirely within the limits of the highway. There was a gate which opened upon the highway from the pasture which gate appellees endeavored to keep closed and securely fastened; but notwithstanding the efforts of appellees to keep this gate closed, it was found to be open on the morning of November 11,1911. It was also found that the flock of sheep had passed out of this gate upon the highway and had gone upon the tracks of appellant company and that a passing traction car had run into the flock killing eleven of the sheep and injuring three or four others.

*4952. Negligence on the part of the railway company can not be ^resumed or inferred from the mere fact that live stock is injured or killed by a car or train on the tracks of the company at a point where the statute does not require the tracks to be fenced. Indianapolis, etc., R. Co. v. Means (1859), 14 Ind. 30; note to Barnowski v. Nelson (1891), 15 L. R. A. 39.

1. On behalf of appellee, it is claimed that there is some evidence to prove a state of facts which forms a proper basis for an inference that the sheep were on the track at the time the ear approached the place or that they were so near the track as to be in danger and that the person in charge of the car saw the danger which threatened them or that he could have seen it by the exercise of ordinary care in time to have avoided the injury by stopping the car or slowing its speed. If the facts proved furnish a proper basis from which all these facts may be legitimately inferred, negligence is proved and the verdict must be upheld even though there be evidence to the contrary.

The evidence shows that the ear which struck the sheep approached from the west and that the track was straight and practically level for a considerable distance west of the place and that there was nothing to obstruct the view of any one approaching’ from that direction. The car passed this place about 5:30 a. m., at which time the day was dawning and witnesses testified that there was sufficient daylight to enable a person to see for a considerable distance. The headlight on the car was still lighted. These facts justify an inference that the motorman by the exercise of ordinary care could have seen a flock of sheep in time to have avoided striking them with the ear, provided they were on the track or in a place where they could have been seen near it .as the ear approached. In order to warrant the inference of negligence, however, the evidence must show that when the car approached, the sheep were in a place where they could have been seen on or near the track. The evidence shows that *496there is a narrow lane which leads from the track on the south side of the highway up to a farm gate some distance from the road, and that the sheep were struck by the ear just east of the place where this lane opens upon the highway. If the sheep were in this lane as the ear approached they could not have been seen by the motorman, and if they became frightened by the approach of the car and ran out on the track in front of it when it was so close upon them that it could not have been stopped, there would be no liability on the part of the company. This is the theory of apj>ellant. The burden rested upon appellee to prove negligence on the part of the servants of appellant, or to prove facts from which such negligence could be rightly and reasonably inferred. Considering the evidence most favorable to appellee and disregarding all evidence favorable to appellant upon this question, what facts are shown which indicate that the sheep were in view on or near the track as the car approached rather than in the lane where they could not have been observed ? It is self-evident that they were on the track when they were struck but that does not justify the inference that they were in that position long enough before that to enable the motorman to see them and stop the car. Witnesses who examined the ground on that morning testified that there were sheep tracks in the road, on the track and also in the lane; and that there were droppings on and near the track east of the gate but not in the lane. This would indicate that the sheep had been in that locality for some space of time, but there is no evidence to show how long they had been on the highway before the arrival of the car and this evidence was not sufficient to justify an inference by the jury that they were at that place when the car approached. The motorman and one other witness testifying in behalf of appellant stated that the sheep were not on the track as the ear approached but that they came out of the lane upon the track immediately in front of the ear and ran along the track and that the motorman was unable to stop the car in time to *497avoid striking them. Even though the jury refused to believe these witnesses and wholly disregarded their testimony, still there is a total want of affirmative proof that the sheep were on or near the track in position to be seen by the motorman in time to have enabled him to avoid the injury by the exercise of due care. The evidence fails to sustain the verdict in this particular and the trial court should have granted a new trial. Judgment reversed.

Note. — Reported in 109 N. E. 760. As to duty of railroad companies as to stock wandering onto the track, see 20 Am. St. TGI; 40 Am. Dec. 261. As to liability of street railway for injuries to animals running at large, see Ann. Cas. 1913 C 722. See, also, under (1) S3 Cyc. 1290, 1297; (2) 33 Cyc. 1274.