dissenting. I think that the verdict should he set aside. The special findings of the jury to the effect that the locomotive was defectively constructed, and out of repair, are erroneous. The evidence conclusively shows that the facts in these particulars were not as found. It is not apparent that these erroneous findings of the jury did not enter into and affect their further conclusion that there was negligence in allowing combustible matter to be upon the premises adjacent to the track. The finding of negligence in this latter particular was made by the jury, as must be assumed, in the contemplation of the circumstance expressed in their findings, but which is contrary to the evidence, that an engine in a defective condition, as respects the escape of fire, was being run over the road. If the peculiar danger to be apprehended from the running of a defective engine over the premises had been eliminated from the consideration of the jury, it is not clear that they would have deemed the defendant negligent in respect to the combustible matter along the side of the road. The proper measure of carefulness is to be determined with regard to the nature and the degree of danger to be apprehended. The case, therefore, shows error which it is reasonable to suppose may have affected the result. I know no exception to the rule that in such a case a new trial must be awarded.