Plaintiff sued the defendant for the value of nine head of steers, which were found, on the morning of November 23, 1893, drowned in a large open well, located on the defendant’s right of way, *158•where the same passes through plaintiff’s farm. The action is based on section 2612, Revised Statutes, 1889, which imposes a liability on a railroad company for stock killed or injured when they shall enter onto an unfeneed right of way, become frightened at a passing train or locomotive, and, by reason thereof, run into any fence, culvert,, bridge, slough, or- mire, or other object along the line of said road. Section 2613 follows and declares it the duty of the trial court, where the stock owner has been compelled to bring suit for his damages, and shall recover, to tax up a reasonable attorney’s fee in favor of the plaintiff.

On a trial of the cause before a jury, plaintiff had a verdict for $175, for which the court gave judgment, together with the sum of $50 attorney’s fees and defendant'appeals.

But two questions are presented for our consideration, to wit: First, did the evidence justify a submission of the case to the jury, and, second, was the trial judge authorized, without the aid of a jury, to fix the value of the attorney’s fees, in face of the defendant’s request that the amount of such fees be determined by á jury trial.

As to the first point, a careful inspection of the testimony leaves no doubt in our minds as to the correctness of the court’s action in overruling defendant’s demurrer to the evidence. It stands undisputed that on the night of November 22, 1893, plaintiff had about fifty steers in his pasture adjoining defendant’s right óf way, which was not fenced; that defendant had at that point a1 large open well, about twelve feet in diameter, and which, according to plaintiff’s evidence, was filled with water, to within about three feet of the top; that about midnight of November 23, one of defendant’s freight trains passed north. But as to whether or not at this time the cattle were on the right *159of way and were frightened and ran ahead of the train and fell into the open well, the evidence is somewhat conflicting. This question was passed on by the jury and they found in the affirmative. And we think they were amply sustained in this conclusion by the clear tendency of the evidence.

But as to the second point, it must be held against the plaintiff. The defendant was entitled to have the amount of attorney’s fees fixed by the verdict of a jury. Dilly v. Railroad, 55 Mo. App. 123. And as was done in that case, the judgment will be affirmed in all things except that portion relating to the allowance of attorney’s fees. As to that, the judgment will be reversed and the causé remanded for trial as to such fee. All the costs will be taxed against the defendant, except the docket fee, which will be taxed against the plaintiff.