delivered the opinion of the court.

This is an action of trespass against the plaintiff in error, instituted in the First District Court of Hinds county, by defendant in error.

It is alleged in the declaration that the defendant in error *605was the owner of a “jack ass,” and that the plaintiffs in error, “ through their agents and employees, — whose names are unknown to plaintiffs, — and while said agents and employees were engaged in running the cars of said Company on the railroad track of the Company, and engaged in the business and employment of the said defendant, did, on the 10th day of June, 1861, negligently and carelessly, and without necessity, run the engine of the said Company, and cars, against and upon said jackass, and did then and there kill and destroy the same; whereby, and on account of the said trespass, the plaintiff has been damaged in the sum of one thousand dollars.”

To this declaration the plaintiff in error filed the plea of not guilty, and upon this issue, there was a jury and verdict for the defendant in error for the sum of five hundred dollars, and judgment thereupon.

A motion was made for a new trial, which was overruled by the court, and the case is brought here to reverse the judgment.

The bill of exceptions embodies the motion for a new trial, and all the evidence in the case.

There are four assignments of error. We shall only consider the first, the disposition of which will determine the case. It is that the court erred in refusing to grant plaintiff in error a new trial.

The substance of the evidence, having any relevancy to the merits of the case, is substantially, that the defendant in error was the owner of a “jack ass ” aged about eighteen or twenty months; that he was found dead on the side of the track of the railroad of plaintiff in error, about two miles from Terry depot; that the jack, with a jennet, was lying about seventy yards from the place, where, apparently, the cowcatcher of the engine had caught him; that there were marks on the road where'the engine appeared to have caught him. He appeared to have been dead about a day before he was found.

None of the witnesses, as is shown by the declaration, saw the animal killed, nor did they know who killed or what killed him.

*606Where the dead body was found was one and three quarters of a mile from the residence of defendant in error, at whose place the jack was kept; that where the body was found the road was straight, and a person could see a mile either way.

There were two instructions given to .the jury, without objections from either side.

The one for the defendant in error is embraced in the instruction for the plaintiff in error, which as is follows:

“In order to enable the plaintiff to recover on the pleadings in this case, the plaintiff must prove all the essential averments of the declaration, to wit, that the defendants were running their cars on their road at the time and place charged, and that the defendants, by the negligence and carelessness of the road, killed the plaintiff’s jack ass; and in the absence of such proofs the jury will find for the defendants.”

The only question is, whether the court should have granted the new trial asked by plaintiff in error. We think the court should have done so.

The testimony as to the killing of the jack was entirely circumstantial ; no person saw the killing, if any were done. There was no evidence before the jury that the engine of the plaintiff in error caused the death of the jack; the only proof on that point was, that the jack was found dead on the side of the track of the road, some seventy yards from the spot on the road where it “ appeared ” that the cowcatcher struck him.

No proof was offered of any negligence or misconduct, or of any want of reasonable care, on the part of. the officers or employees of the road, and in charge of any particular train running at that time, whether it was done in the night or the day.

The jury, it seems, drew an inference from the appearance of the dead body of the animal and the marks, on the track of the road, that the death of the jack was caused by the carelessness and negligence of the employees of said Company, and upon that presumption found their verdict for the defendant in error.

We consider the testimony wholly insufficient to support the *607verdict; it should have been demurred to by the plaintiff in error at the trial.

The verdict is contrary to the instruction of the court given for the plaintiff in error, which announced the law correctly. Mississippi Central Railroad Company v. Miller, 40 Miss, p. 45.

The question at issue was, whether the death of the jack was the result of carelessness or negligence on the part of the plaintiff in error, and this had to be established in the language of the instruction before the jury could find a verdict for the defendant in error.

The proof negatived any such facts.

The verdict was manifestly wrong, and contrary to the law and the evidence, and the court should have set it aside for the first ground assigned in the motion for a new trial.

let the judgment be reversed, the verdict set aside, and a new trial awarded.