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*100tiff for all the injury complained of, and no error being insisted upon relating to the injury occurring on the 29th day of April, the case cannot be reversed; and counsel for appellant only ask that it be modified by reducing the amount of the judgment rendered by deducting the value of the property injured on the 9th of May.
The alleged errors in the main case, viz., those relating to the injury on the 29th of April, having been abandoned, the case cannot be reversed, and the question is, can'it be modified?
Section 23, Code Civil Proc., provides among other things, that, “the supreme court may reverse, affirm, or modify the judgment or order appealed from in whole or in part,” etc.
But to warrant this court in modifying the judgment by reducing it, the amount erroneously awarded and embraced in the judgment must clearly appear upon the record.
The jury not having found the value of the cow killed on the 9th of May, but returning a verdict in the aggregate, as damages sustained by plaintiff, and there being no way of determining the value of said cow, or whether her value was included in the sum returned by the jury as damages to the plaintiff, the judgment cannot be modified, but must be in all things affirmed.
All the justices concur. Thomas, J., not sitting.