The opinion
De Courcy, J.
This action of tort was brought to recover from the defendant for the loss of three heifers. The contention of the plaintiffs is, that the cattle were poisoned by eating arsenate of lead, alleged to have been negligently and wrongfully placed on the plaintiffs’ pasture land by agents and employees of the defendant.
The station lot of the defendant in the town of Swansea was bounded on the south by the railroad right of way, on the west by Gardners Neck road, and on the north and east by the pasture lot of the plaintiffs. In the latter part of August, 1914, two heifers, which the plaintiffs pastured in this lot, were found dead, and the third was removed but died later. One of the plaintiffs, on looking over the pasture, found near the division fence various articles of rubbish, such as paint and tomato cans, pails, rope, trolley poles, broken crockery and pieces of black board. In the bushes nineteen feet east of the fence he found a wooden keg, which was open at the top, and contained a small quantity of what appeared like loose white powder.
Assuming in favor of the plaintiffs that on all the evidence the jury could find that this white powder was arsenate of lead, and that the cattle were poisoned by it, the burden was on them to go further and show that the poison was deposited in their pasture by some one for whose action the defendant was legally liable. There was no evidence that said keg belonged to the defendant, or ever waf''on its premises, or in the possession of any of its employees. One Sheehan had left a keg and other apparatus used for spraying trees, at the station in 1910; but so far as appears it was shipped to Providence by freight or express, as he directed. While it might be inferred that some of the rubbish found in the pasture came from the station or freight house, obviously some of it had not been *547 in the possession of the defendant; and besides the keg was found at another spot. Not only was there no evidence that any employee of the defendant put the keg in the pasture, but there was an equal opportunity to do so by the numerous persons who came in vehicles to the station or freight house or post office, or drove into the freight yard by the way adjoining the pasture. In short, the plaintiffs failed to show either by direct evidence or by reason-, able inference from established facts, that the keg containing poison was placed in the pasture by any negligence or wrongful act for which the defendant is responsible. On the evidence we are left wholly to conjecture and surmise to determine where the keg came from, or how it got where it was found. Bigwood v. Boston & Northern Street Railway, 209 Mass. 345 . See also McCulloch v. Needham, 217 Mass. 227 ; Lyford v. Boston & Maine Railroad, 227 Mass. 10 .
In accordance with the report, the verdict for the defendant is to stand, and it is
So ordered.