Magee

This action was brought to recover damages from the defendant for the alleged injuries suffered by the plaintiff in being thrown from a train of cars operated upon the defendant’s railroad track. The plaintiff recovered a judgment for $2,500; from which, and an order refusing a new trial, the defendant appeals.

The complaint alleged that it was the duty of the defendant toward the plaintiff, one of its employees, viz., a brakeman *44 and assistant baggage-master, to keep the right of way and track of its railroad “fenced with good and sufficient fence on both sides thereof, so as to prevent cattle and animals from getting on said track,” and “to provide a good, safe and secure locomotive and tender, with a pilot cowcatcher in front thereof, and to run and operate its trains in such manner as to always have the locomotive in front of its train, and a pilot or cowcatcher in front of said locomotive engine, and in a position to remove obstructions from said track. ’ ’ It was then alleged that these general duties were unperformed, and that of their nonfulfillment the defendant had notice.

The charge was also made against the defendant that by reason of its negligence its railroad…