*17On Petition fob a Reheabing.
Gavin, C. J.Appellee has filed a petition for rehearing, based upon the claim that the introduction of the evidence, by reason of which a reversal was ordered, was not prejudicial to appellant. Appellees’ answer of justification was held bad by the court, until they had added an allegation that they only did what was necessary to do to take the gravel so assessed and paid for by them, and did this, also, in a careful manner.
The exercise of proper care was evidently deemed by the court and counsel a material fact to enable them to sustain their answer. Neither the issue made by this answer, nor. the evidence introduced, were by any instructions withdrawn from the jury. The evidence' complained of, while not legally competent, was of such a character as would, when received with the approval of the court, be regarded by the jury as bearing upon the question of proper care as presented by the issues in the cause; and counsel for the appellees, in their original brief in this cause, argued the propriety of its admission upon this ground. They state it to have been “evidence given by one of the appellees concerning what he did in regard to exercising care in taking out gravel.” They also say: “We think this was proper,” and then proceed to assert it to have been directly within the issues in the cause.
We think it late for counsel to urge that the evidence was harmless.
We may add, what we did not deem it necessary to say in the original opinion, that the damages assessed are too» small, as shown by an overwhelming preponderance of the evidence, and there is, in fact, hardly sufficient evidence to sustain the finding under even the liberal rule *18applicable in support of verdicts. Where it is manifest that something other than the evidence properly admissible has guided the jury in assessing the damages, we are of opinion that it is safe to charge the wrong result to the admission of improper evidence.
Filed June 10, 1893.The petition for rehearing is therefore overruled.