¶1*17On Petition fob a Reheabing.
¶2Appellee 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.
¶3The 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 the evidence introduced, were by any instructions withdrawn from the jury.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.
¶4We think it late for counsel to urge that the evidence was harmless.
¶5We 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.
¶6The petition for rehearing is therefore overruled.
¶7Dissenting Opinion.
¶8The action made by the complaint is one to recover damages for a simple trespass upon real estate. There is no charge in the complaint that the trespass was maliciously committed. The appellees answered, first, in denial; and, secondly, by way of confession and avoidance.
¶9The entry upon the lands was a conceded fact, both in the pleadings and upon the trial of the case. Appellees, however, sought to defeat a recovery by showing that the appellant had estopped himself in standing by and permitting appellees, with his knowledge and consent and acquiescence, to pay all the damages to the lands and crops to the owner of the fee. After the entry was admitted, the only controverted questions were the estoppel and the amount of the damages. The motives that actuated the appellees and the manner in which the entry and removal of the gravel were done, were wholly immaterial. The extent of the acts done, and the injury flowing from them, were the material questions.
¶10The sole ground for the reversal, as stated in the former opinion, is that the court improperly permitted one of the appellees to testify to a statement and direction given to his foreman concerning the manner in which he desired the work to be done. The witness stated “that he was frequently at the farm where the plaintiff lived while the men were taking gravel therefrom,” and that he di*19rected his foreman to be careful about the property, particularly about the house.
¶11The record before us shows that before this testimony was offered the appellant and several other witnesses had testified fully as to the manner and extent of the trespass and the injury done to the growing crops and tenancy. This testimony was given by the appellant on his own motion, and it was before the jury at the time the evidence of which complaint is made was offered. The ultimate fact or act itself was given in evidence by the appellant on his own motion.
¶12Under the circumstances of this case, it is inconceivable to me how a declaration concerning a fact can be deemed hurtful when the fact itself remains in evidence. Appellant voluntarily gave the substance and now complains of the shadow.
¶13I think the petition for a rehearing should be granted.
¶14Filed June 10,1893.