Appeal from Circuit Court, Eranklin County ; Charles P. Almon, Judge.

Action by I. L. Jackson against G. W. Strickland. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6.

The following is the version of the plaintiff and. the defendant;

The plaintiff said:

“I was at the mare’s head when the horse was turned to her, and was not where I could see whether or not the entry was wrong. * * * Defendant first. started to let the horse serve the mare, and the mare was twisting about, and the house got crossways with the mare, and the defendant took the horse off and made Mm put Ms tool up. When the horse got ready again, we placed the mare, and W. H. Hill was helping me to hold her this time, when the defendant let his horse on her. * * * The mare was twisting about, seemed to be afraid of the horse, and Hill was helping me to hold her this time. * * * The defendant had Ms horse to serve Hill’s mare before he turned him to my mare. He said be would have the horse serve Hill’s mare before be did mine, so the horse would be as quiet as possible. The defendant had the horse 'under good control, was handling him carefully, and gave the toare proper attention.”

The defendant, on direct examination, testified as follows:

“The plaintiff brought Ms mare to be served by my horse. She was a small mare, weighed about 700 pounds. The horse weighed 1,300 pounds. * * * I told the plaintiff, as his mare was so little and the horse as large as he was, it would be better to have the horse serve Mr. Hill’s mare first, so that the horse would be as quiet as possible when I turned Mm to the plaintiff’s mare. I turned the horse to Hill’s mare first. * * * She turned and twisted about, and got crossways under the horse, and I took Mm off of her and led Mm a few steps away. * * * The plaintiff called Mr. Hill to come and help Mm to hold the mare still’that time for the horse to serve. The plaintiff and Hill were both hold of the maro. * * * I guided for him, and to the best of my judgment I guided the horse right, and he entered the mare right. I had hold of Ms penis, and guided it-to the right place, and, when it started in, I then went to the horse’s head to hold and control him. * * * I went to my horse’s head this time to keep Mm from biting or hurting the mare. I handled the horse carefully, and took pains with the mare to servo her without injury. It is my opinion, and it is my best judgment, that the horse made right and proper entrance in the mare when I was guiding Mm, but that the mare was twisting, and that this caused his penis to come out. * * * The mare was continually twisting about under him. I handled the horse carefully and properly, and in the manner careful stock men handle studs in serving mares.”

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