#### The Toledo, Wabash and Western Railway Company v. David Spencer.

Negligence—comparative. Where there is evidence tending to show that the plaintiff’s negligence was slight when compared with that of the servants of a railway company, and that of the latter was gross, a finding in favor of the plaintiff", in an action to recover damages from the company for the breaking of the plaintiff’s wagon by running into it by the locomotive of the company, will not be set aside.

Appeal from the Circuit Court of Morgan county; the Hon. Charles D. Hodges, Judge, presiding.

This was an action on the case, by the appellee against the appellant. The declaration alleged that the plaintiff’s wagon was run over and destroyed whole carefully being driven along Main street, in the city of Jacksonville, by the cars of the defendant; that said cars were managed negligently, and that no whistle was sounded or bell rung to warn plaintiff. The general issue was filed and a trial had before the court without a jury. The court found for the plaintiff, and assessed his damages at $144.46, and rendered judgment for the same, from which the defendant appealed.

Mr. William H. Barnes, and Mr. Geo. H. Smith, for the appellant.

Messrs. Morrison & Whitlock, for the appellee.

Mr. Justice McAllister

delivered the opinion of the Court:

This record presents simply questions of fact, upon which it was the province of the jury to pass. There was some evidence of slight negligence on the part of appellee’s servant. *529Still, if his negligence, when compared with that of the servants of appellant, was slight, and that of appellant’s servants gross, the verdict should be sustained, according to a long line of decisions in this State.

We are of opinion that the evidence tended to support such a finding, and there is no ground for setting it aside.

The judgment is affirmed.

Judgment affirmed,.