rebut either branch of plaintiff's case. The company did not offer testimony tending to show ordinary care, either with respect to the manner of operating its train, or as to the condition of its right of way at the point where the fire caught in the same. In this state of the evidence, ordinary care not having been shown by the defendant, the jury could not have done otherwise than find for the plaintiff on the question of defendant’s liability. In order to recover, it was not essential for the plaintiff to show negligence in the appliances used, or in the management of the train. The evidence fully warrants the verdict upon another independent branch of the case, viz., that relating to the condition of the right of way. What the jury were told as to due care, or a “higher degree of care,” in operating the train, could have no legitimate influence upon their minds in reaching a conclusion as to whether, at the point where the fire started, the right of way was in a negligent condition, or whether the fire caught within the right of way. Upon this branch the evidence was conclusive, and not controverted. We are clear that the instruction was erroneous, but equally clear that it did not prejudice the defendant nor materially affect the substantial rights of the defendant. The assignment of error upon this point must be overruled. Brobst v. Brock, 10 Wall. 519; also opinion in Ross’ Case, 112. U. 8. 395, 5 Sup. Ct. Rep. 184.
We have carefully examined the defendant’s other assignments of error, and find nothing in them which would warrant the court in disturbing the verdict, except the following instruction: “If you find from the evidence that the plaintiff's property was destroyed by or through the negligence of the defendant, then you must assess the damages of plaintiff in such a sum as he has proven to you he has sustained, with interest at seven per cent. per annum from the date of loss to plaintiff.” This instruction is error. The action is for the breach of an obligation not arising from contract. In this class of cases, § 4578, Comp. Laws, controls. The section is as follows: “In an action for the breach of an obligation not arising from contract, and in every case of oppression, fraud, or malice, interest may be given in the discretion of the jury.” The trial judge improperly took
