concurring in the conclusion.
I do not take the view as to the evidence which is announced in the foregoing opinion. I think the question is properly for the jury, and that, if the jury believed the plaintiff’s witnesses, and had been properly instructed as to the laiv, there was sufficient evidence to support the verdict. It is admitted the cow was trespassing upon the railroad track at a point where it was not the duty of the *271railroad company to fence its tracks. In such a state of facts, the railroad company is only liable; in case the killing is caused Avantonly or by gross negligence on the part of its employees. Burlington & M. R. R. Co. v. Wendt, supra. The jury were told that the question to determine Avas whether the employees of the railroad company were guilty of negligence in the operation of the train. This instruction Avas complained of and is erroneous. Unless, under all the circumstances, the engineer was guilty of gross negligence, the plaintiff cannot recover. If the jury believed the engineer, no liability existed; if they believed the plaintiff’s witnesses, the question for the jury was whether it was gross or Avanton negligence on the part of the engineer, under all the circumstances, not to see the cattle on the track a sufficient time before reaching them so as to avoid the killing by the exercise of ordinary care. I therefore concur in the conclusion, but not in the opinion of Mr. Commissioner Ames.