*284The opinion of the court was delivered by
Kingman, C. J.:
■1. Verdict; when fnsld*?evl-" dence' This action was brought by the defendant in error to recover the value of a horse alleged to have been killed by the engine of the plaintiff in error. ‘The horse was turned out upon the prairie four or five miles from the railroad, and strayed upon the road and •was killed by the engine. It is not necessary to review the testimony. No good purpose can be served thereby; for while the verdict is one that does not commend itself "to our judgment from the testimony, as it appears on the record, still there is testimony tending to up- ’ J ° r . hold every proposition on which the plaintiff must have relied to obtain a verdict. There were two trials of the case in the district court, and on each a verdict was rendered for the plaintiff. Under such circumstances, this court does not feel inclined to reverse an order of the court below, refusing to grant another new trial of the case, and will not do so.
- It was claimed in argument, that the turning the horse loose upon the prairie was evidence of negligence, which ■contributed to the loss, and therefore plaintiff ought not to recover. It is too much to say that turning a horse loose at the distance of four or five miles from the road •was in itself negligence. This fact like the others was •submitted to the jury.
i2. Instructions; . ■'|íeslmld.tó a coueot. II. The plaintiff in error asked a number of instructions which were refused. It appears however that the court charged the iury, and the charge is not in the'record. It is to be presumed that the change given Was the correct law of the case, -and if 'so, it was not necessary to give the instructions asked by plaintiff in error, even if they were correct," and •it can answer no good purpose to examine them.
*2853. Evidence; XSSS58T,’. NI. One of the errors alleged is the admission of improper testimony. The ■ witnesses Redman and Jones,. were permitted to testify as to whether the railroad track was fenced at or near the place where the horse was killed. The evidence was competent to show the exact condition of the track at the place, as showing whether the horse could or would be likely to pass off the track, with the engine after him.
4. jury: no upo°n théi”sist agreeing upon a verdict. IY. Another assignment of error is the action of the court toward the jury. We fail to perceive how the remarks made by the court were calculated to intimidate the jury, to influence their determination, or in any way affect their verdict. This was the second trial in the. district court, and it was-proper enough to insist upon all reasonable efforts being made by the jury to agree upon a verdict; but there is not the slightest intimation as to how they should agree.. Finding no error, the judgment is affirmed.
All the J ustices concurring.