No. 14,243.

#### The Chicago and Eastern Illinois Railroad Company *v.*Modesitt.

Supreme *Court.*— Questioning *of Answer by Assignment of Error.*— An answer can not be questioned for the first time in the Supreme Court.

*Bailroad.*— Injury *to Animals.*— Construction *of*Cattle-Guards.— *Opinion Eoidenee.*— In an action to recover for the value of horses killed on the track of a railroad, the opinion of an expert witness that the construction of a cattle-guard under the track at the place where the horses entered upon it would render the use of the tracks dangerous, is inadmissible.

*Same.*— Maintaining *Fence.*— Burden *of Proof.*— In such action the burden is upon the defendant to show affirmatively that the place where the animals entered was one that it could not fence without endangering the safety of its employees.

From the Vigo Superior Court.

*W. H. Lyford*and *L. D. Thomas,*for appellant.

*I. N. Pierce*and *W. W. Pumsey,*for appellee.

Elliott, J.

The appellee seeks to recover the value of three horses killed on the track of the appellant, near the village of Atherton, in Vigo county.

The answer of the appellant was not challenged, in any form, in the trial court, and it can not be successfully assailed here for the first time. The statutory provision permitting a pleading to be questioned by an assignment of errors in this court does not apply to answers.

The appellant offered to prove, by expert witnesses, what would be the effect of putting a cattle-guard under the tracks at the place where the horses entered upon the track, and the court excluded the offered evidence. There was no error in this ruling. The appellant was entitled to prove the condition of the tracks, their location, the use made of them, and like facts, but it was not entitled to the opinion of a witness that the construction of a cattle-guard would make the use of the track dangerous. The ruling of the trial *213court is sustained by the decision in the case of *Indiana, etc., R. W. Co.*v. *Hale,*93 Ind. 79. It is also sustained by the general rule that a witness can not express an opinion upon the point which it is the duty of the jury to determine. The case under consideration is not of the same class as the eases of *Louisville, etc., R. W. Co.*v. *Frawley,*110 Ind. 18; *Carthage Turnpike Co.*v. *Andrews,*102 Ind. 138. In the case of *Indianapolis, Peru, etc., R. W. Co.*v. *Crandall,*58 Ind. 365, the evidence offered tended to establish a material fact, and was not a mere expression of opinion. It was for the jury to determine from the facts established by the evidence whether the company was excused from putting in a cattle-guard for the reason that it would make it dangerous to use the track, and it was not a question for opinion evidence.

Filed June 3, 1890.

The case is a close one upon the evidence, and it is probably true that the case made by the appellant is the stronger; but we can not say that there is not evidence sufficient to support the verdict. The burden of showing that the track could not be guarded by cattle-pits, or fences, without endangering the safety of its employees, was on the defendant; for the statute makes no exceptions, but declares, in general terms, that it is the duty of a riailroad company to fence its track. The court has, however, so construed the statute as to engraft upon it some exceptions. It was, therefore, incumbent upon the appellant to show affirmatively that the place where the animals entered was one that it oould not fence without endangering the safety of its employees. *Pittsburgh, etc., R. W. Co.*v. *Laufman,*78 Ind. 319; *Fort Wayne, etc., R. R. Co.*v. *Herbold,*99 Ind. 91, and cases cited p. 93; *Evansville, etc., R. R. Co.*v. *Tipton,*101 Ind. 197.

The doctrine declared in the case of *Cincinnati, etc., R. R. Co.*v. *Jones,*111 Ind. 259, warrants an affirmance of this judgment.

Judgment affirmed.