The declaration contains a count in trover and two counts in case. Under the first count the plaintiff claimed that he let a pair of horses to the defendants to work together upon a dump-cart in operating their quarry, and that in violation of the contract they worked them separately and put them to1 a different use than the contract contemplated and thereby converted them to their own use. One of the horses was injured while working alone and died of his injuries. The jury found by a special verdict that the defendants were not guilty of trover, and therefore they must have failed to' find the contract claimed by the plaintiff. The verdict was that the defendants were guilty of negligence under the counts in case.'
1. The plaintiff was permitted to testify that directly after the accident he had a conversation with defendant Bout-well, who' directed him to take the horse to his, Boutwell’s, stable for treatment. This evidence was objected to, and the plaintiff’s counsel being inquired of by the presiding judge, said that it was offered to show that Boutwell appreciated the situation and considered the defendants liable for the injury— that they had not worked the horses together according to the agreement. The offered evidence was incompetent to show negligence on the part of the defendants in the use of the horse (Sias v. Consolidated Lighting Co., 73 Vt. 35), and it is difficult to see how it could have borne upon the issue whether the contract was as the plaintiff claimed, namely, that the horses were to' be worked together and not separately. But pending the question the presiding judge asked the defendants’ counsel if they made any question but that the horse died *387from the injuries received, and he replied “I do not want to concede — whether there was any negligence afterwards in the care of the horse I don’t know. I suppose the first trouble with the horse was this accident” * * * The judge then directed the witness to answer the question and for the evident purpose of showing whether or not any negligence Was imputable to the plaintiff in his treatment of the horse after the accident, or whether the horse died of his injuries. The statement made by the defendants’ counsel before the question was answered, that he did not question but that the horse died of the injuries received, did not meet the court’s inquiry. The answer was clearly admissible as bearing upon any claim that might be made that the horse died from the plaintiff’s negligence. The exception taken cannot avail the defendants.
2. The plaintiff was asked by his counsel what was the fair value of the horse, and he improperly answered: “I valued him at $300.” To the court’s inquiry he made'the same answer, but upon the question being put the third time he seemed to understand what was a proper answer, and said, “well, between $275 and $300.” It is inconceivable that the plaintiff’s first two' answers could have harmed the defendants. That the jury were not influenced by them is shown by the fact that the verdict was for a much smaller sum than any estimate of the plaintiff.
3. The witness Smith testified that he owned and used the horses a year and sold them to the plaintiff. Upon being asked to state the value of the horse that died he answered: “If he was as sound as I should say he was without seeing him for a year or so and examining him closely, I should say from $200 to $225.” He had previously stated that the plaintiff paid for the horses in part by working with them for him, and *388that he occasionally met them upon the highway after the sale. There was no¡ error in the admission of the evidence. The witness’ estimate of value was predicated upon the horse remaining as sound as when he sold him. The remoteness of the times when the witness had last seen the horse only affected the weight of his testimony. Its admission or exclusion on that ground was discretionary with the court.
4. The plaintiff was permitted to show*, under the defendants’ exception, that after the accident the defendants repaired the road that led fo the dump. The rule is- that repairs of a highway by the selectmen -of a town, after an accident, cannot 'be shown for the purpose of proving antecedent negligence. But here the evidence was offered not only to show that the defendants considered the roadway unsafe, but for the further purpose of showing, from the fact that the surviving horse remained there and worked a week after the other one 'died, that the contract was as the plaintiff claimed in respect to the horses being worked together.
The declaration was framed and the case was tried and submitted to the jury upon two grounds, — one, that by the defendants working the horse singly in violation of the contract, they converted him to their use, — the other, that he was injured through their .negligence. The defendants denied both claims. Upon the first ground, if made out, the contract ended with the injury to one horse, and the other was worked thereafter under a new agreement. The plaintiff’s offer was, “to show that it was under a different arrangement, — that the road was made passable, and that then the other horse remained there to work,” and not under the original agreement. The court inquired of counsel if the evidence was offered to show that the road was soon repaired *389and that that was the reason why the other horse remained there to- work, and counsel replied that that was the purpose. It was admitted for that purpose only, and the court at the close of all the evidence instructed the jury that they were to consider it only as bearing upon the question why the horse was allowed to remain there and work singly for a week, and not as an admission by the defendants that the road needed repairing. With this restriction and instruction there was no •error in admitting the evidence.
5. The court properly refused to- direct a verdict for the defendants for the reason that whether there had been a •conversion of the horse by the defendants, and if not, whether it was injured through their negligence, were questions of fact for the jury under proper instructions. The court» carefully explained to the jury the two- grounds upon which the action was brought, and when they rendered their verdict, inquired upon what ground they found the defendants liable, whether for negligence or under the count in tro-ver, and the foreman replied, “negligence.”
6. The plaintiff’s counsel said in his argument that the defendants did not care what became of the horse; that what they wanted was to get all they could out of him; that they didn’t care whether he went .over the dump or not; that they had money enoug'h to- fight, etc. The remarks were improper, but upon exception being taken thereto- by the defendants’ ■counsel they were fully retracted and the matter was so ^promptly and adequately dealt with by the court that we think there is not sufficient cause for setting the verdict aside.
Judgment affirmed.