was very scarce. I knew I had to rent a room somewhere for storage. It would be an accommodation, and would save me drayage."

Did this constitute a gratuitous bailment or deposit, quære?

The trial court held it to be a gratuitous deposit, and that the defendant was only bound to take "slight care" of the goods, and was only responsible for "gross negligence."

The evidence tended to show that the fire occurred about midnight on the 19th day of August; that at the time a freight train from the east arrived at the station, stopped about 20 or 30 minutes, and moved on westward; that said freight train, when it arrived at the station, had what is known as a "hot box;" that the train-men, while stopping at the station, "unpacked and repacked the hot box;" that the track upon which the train was standing at the time was directly south of the depot; that the burning waste from the hot box was removed, and piled upon the ground between the end of the ties towards the depot; and, as the conductor in charge of the train testified, "When I packed the box, I stood down between the box and the platform. There was plenty of room-two and one-half or three feet-between the box and the platform."

A portion of this waste thus removed was placed back in the box, and the rest was left on the ground, where it was taken out, and confessedly within 30 or 36 inches of the platform, which extended up to and connected with the depot and warehouse.

The evidence further disclosed the fact that the platform, at the point where the waste was deposited, was elevated above the ground, and that old waste, paper, weeds, and rubbish generally, had been carried under it by the winds; that at the time the fire caught, a strong wind was blowing from the south, so that fire and burning shingles were carried north from the depot a distance of 60 or 80 rods; that the portion of waste left on the ground from the hot box was smoking when the train left the station; that the fire was first discovered in the platform at the point where the burning waste was deposited, and within 20 or 30 minutes thereafter.

Excepting the testimony relating to the character of the material called "waste," and its capacity to retain fire, and be fanned to a blaze by the wind, the above is the substance of the material testimony adduced at the trial.

Practically only two questions are presented by the assignments of error.

The first is to the ruling of the court in admitting the testimony of witnesses as to the condition of the ground around and under the platform at the point where the waste was deposited, and the fire originated.

The second relates to the refusal of the trial court to direct a verdict for the defendants, because of the insufficiency of the evidence to support a verdict of gross negligence against the defendant company.

Under the first assignment is presented the admissibility of the evidence offered to show that waste, weeds, old papers, and other highly imflammable material, were permitted by defendant's agents to accumulate around and under the platform at the point near where the burning waste was left on the ground.

In the absence of any other theory as to the origin of the fire, and with the undisputed evidence that a strong wind was blowing exactly in the direction of these combustibles, if they were there, it is very clear that this was competent evidence upon the issue of gross carelessness.

Second. Was the evidence sufficient to support the verdict? The trial court told the jury "that the railroad company can only be held liable, in a case like this, when goods are lost or destroyed through their gross negligence. Under the law of this territory there are three degrees of negligence mentioned, viz., slight, ordinary, and gross. Slight negligence consists in the want of great care and diligence; ordinary negligence is the want of ordinary care and diligence; and gross negligence is the want of slight care and diligence. It is only under and by virtue of the last provision which I have read in your hearing that the defendant in this action can be held liable. Unless you are satisfied from the evidence that the railroad company, in the

care and custody of these goods, were guilty of gross negligence; or, to state it conversely, if you find from the evidence that they did not exercise slight diligence and care, then they may be held liable," etc. From the evidence presented by the record the defendants could certainly not complain of the rule of law thus laid down; and from all the evidence in the case we are of the opinion the trial court was justified in submitting the case to the jury, and we are not prepared to say from all the evidence that the jury were not warranted in finding that the acts of the defendant's agents and employes were grossly negligent. judgment must be affirmed.

All the justices concur.

The

CADY, Respondent, v. CHICAGO, M. & ST. P. R. Co., Appellant.

1. Appeal-Aggregate Verdict-Review of Part.

Where there is a general verdict for the aggregate loss sustained by two negligent injuries, and the only error relied on is the charge of the court as to one, its correctness will not be determined, for the case could not be reversed, there being no error insisted upon as to the other injury sustained.

2. Same-Modification of Judgment-C. C. Pro. § 23-Excess, How to Appear.

Under C. C. Pro. § 23, empowering the court to modify the judgment appealed from, the amount erroneously awarded and embraced in the judgment must clearly appear from the record. Where the verdict was in the aggregate for two losses by negligence on different dates, and there being no way of determining the amount of the one respecting which only error was claimed, the judgment cannot be modified. (Argued May 20, 1887; affirmed May 26; opinion filed February 20, 1888.)

Appeal from the district court of Moody county; Hon. C. S. PALMER, Judge.

R. Brennan, for appellant.

Cady testifies that on April 30th he had killed,-one cow, worth $100; one cow, worth $25; one cow, worth $40, injured, which V.5DAK.-7

died three days after; one heifer, damaged $10 to $12; and on May 7th, one cow killed, worth $55.

He presumes these to have been killed by the company; did not see the killing; and his testimony relative to it is hearsay, incompetent, and would not warrant a verdict.

Link, a witness for plaintiff, says he saw the train, on April 30th, strike three head.

Town, engineer of freight train: "I saw the engine strike two. I think we struck three, for three remained."

Tierney says two were struck; and all the evidence relating to the cow injured on the 7th is from the conductor, engineer, fireman, and Mr. Tennant, who all say that that cow on that day had a foot or leg broken only.

Now, this defendant in this verdict is charged with the killing of four head of cattle, for any other supposition would be simply a deduction not warranted by the testimony.

There is no dispute as to the value of these cows, or as to the injury to the heifer; and the total damage by the killing, as sworn to by the plaintiff, amounts to $235 or $237.

The jury have found for the plaintiff in the sum of $223. This of course presumes the idea that they have excluded from their consideration anything other than the injury to the heifer, the damage to which was estimated at ten or twelve dollars.

It then appears that the jury must have found that the defendant killed four head of stock, the value of which, according to plaintiff's testimony, is $225.

There is no testimony before the court or jury that five head of cattle were injured or killed; for, remember, one fully recovered.

We insist this verdict is not justified by the evidence.

Rice Bros., for respondents.

The only point made is that the verdict is excessive in that there was no proof of the killing of more than three animals.

The verdict is fully sustained by the evidence. It is found the whole value of the stock killed was $215, the damage to the

one injured that did not die was $10, or $225 in all, or $2 more than the verdict of the jury. The evidence of the killing of the stock is that of plaintiff, and also Link, who testifies that he saw three head of cattle struck by the engine on April 30th. Defendant's own witness, Mr. Tennant, testifies that he was on the passenger train that killed the last cow. There being no dispute as to the killing of the stock, or its value, there is nothing in the question of excessive damage.

PALMER, J. This was an action brought against the defendant corporation, to recover damages for the killing of certain cattle upon the defendant's track, and near the adjoining land of the plaintiff.

The defendants admitted the killing of a portion of the stock, but claimed to be relieved from all liability therefor, because the stock was trespassing upon the defendant's right of way at the time of the accident; and all diligence was used by the agents of the defendant in the management of the train to avoid the injury; and that the plaintiff so far contributed to the injury by allowing his stock to run at large, and upon the defendant's right of way, that no recovery could be had in the case.

Trial by jury. Verdict and judgment for the plaintiff. It appears from the record in the case that a portion of the stock in controversy was killed on the 29th day of April, 1885; and one cow, for which damage is claimed in the action, was killed on the 9th day of May, 1885.

Various assignments of error are presented, some of which relate to the improper admission of evidence, and others to errors claimed in the charge of the court.

Upon the argument of the case in this court, the only error relied upon by counsel relates to the charge of the court upon the subject of the killing of the single cow on the 9th of May.

Without attempting to consider or decide the correctness of the legal proposition presented by the charge of the trial court upon this branch of the case, it is sufficient to say that, the verdict of the jury being general, for an aggregate sum for the plain