*162 Judgment affirmed.
The jury found for plaintiff, and defendant’s motion for a new trial was overruled. To this also it excepted. The motion contained the following grounds besides those alleging that the verdict was contrary to law, evidence, etc. The court said to defendant’s counsel in the hearing of the jury, “I do not see what use there is in proving that the building of the fence has increased the dangers of the locality,”—defendant’s attorney having just asked the plaintiff whether the building of his fence at that particular point had not increased the danger to cattle in that pasture. The court’s remark was alleged to be error, “because that was a question of negligence on plaintiff’s part and for the jury, and was an expression of opinion on the evidence, and moreover was erroneous as a legal proposition.” The court certified that this remark of the court was made in the course of a legal argument by defendant’s counsel, with a view to draw out the counsel’s ideas of the law, and not to express any opinion to the jury. . Defendant’s counsel in his opening argument urged the proposition, “that if the killing of these cattle was an unavoidable accident, or resulted from the manner in which, plaintiff had located his fence with reference to the tracks, thereby greatly increasing the natural dangers of this locality, and he could have avoided building his fence just here without any serious inconvenience, then we take the position that the plaintiff' cannot recover.” The court interrupted counsel to say that he did not agree with those propositions, that it did not make any difference where the fence was located, and the court did not understand that the defendant had any right to object to plaintiff’s placing his fence where he chose on his own land. This was alleged to be error because it entirely withdrew from the jury all question of the contributory character of plaintiff’s negligence in constructing his fence, and was an expression of opinion on the facts. The court certified that this remark was made, not as a final legal proposition or charge to the jury, but only by way of giving counsel an opportunity to combat the court’s idea of the law and convince him to the contrary, if he could. Defendant’s counsel moved to rule out certain testimony to which he had objected, and added, “I want the court to understand that I reserve this point.” The court replied, “I understand that you wish to reserve that point for the purpose of taking the case up.” It was alleged that this was error “because it was calculated to prejudice the jury and lead them to believe that defendant had despaired of his ease.” The court admitted testimony of the tortious killing of the cattle, defendant objecting thereto because plaintiff' declared on an open account in an action ex contractu, and there was no claim for damages ex delicto in the declaration. The court charged: “When the killing of stock by a railroad is shown, the law puts the burden on the railroad of rebutting the presumption of negligence. This presumption may be rebutted in one of three ways : either by showing that they have exercised all ordinary and reasonable care and diligence to avoid the injury; or that the injury was done with plaintiff’s consent, which of course, is not contended in this case; or that it resulted solely from the negligence of the plaintiff.” This charge was alleged to be error, because defendant did contend and the evidence tended to show that the conduct of plaintiff' amounted in law to a consent to the injury, and this charge entirely withdrew that question from the jury and was an expression of opinion on the facts; also, because it confined the contributory character of plaintiff’s negligence to the single hypothesis of the injury resulting solely from said negligence. The court failed to charge the law applicable to contributory negligence, and unavoidable accident. This was alleged to be error, because the facts called for such a charge, and it was impossible for the jury to properly consider the case without a knowledge of this law; and because it was one of defendant’s contentions to the jury that, so far as it was concerned, this was a case of unavoidable accident and the evidence tended to show it. The verdict is so vague and indefinite as to be without meaning, it being as follows: “We, the jury, find for the plaintiff $129 with credit of seventy-five pounds of at three and a half cents per lb., with entrust from Oct. 15, 1889.” This verdict was read in the presence of the jury as follows: “We, the jury, find for the plaintiff one hundred and twenty-nine dollars, with credit of 75 pounds of beef at three and a half cents per pound, with interest from Oct. 15, 1889.” The verdict is contrary to law in finding interest, the action being one ex delicto, and if interest was found at all it should be added into the principal sum of the verdict. W. W. Brookes and W. T. Turnbull, for plaintiff in error. Beece & Denny, contra. •