(1) In view of three concurring verdicts for the *8 plaintiff, the court must assume, even though it may not be satisfied, that the verdict is not against the evidence.

In Burnham v. N. Y., N. H. & H. R. R., 17 R. I. 544, and 18 R. I. 494, this court set aside three concurring verdicts, but for reasons which do not apply to this case. In that case, in the opinion of the majority of the court, it conclusively appeared that the engine which Burnham was running, comparing its admitted rate of speed and the distance to be covered, must have been beyond the electric signal, so that he could have seen it if he had been looking. In this case there'is no such degree of certainty.

No exceptions are urged, and the only question of law which the defendant presents is one based upon a finding of the fact that the defendant did not know, or have reason to know, that his lumber was piled on private land. Evidently the jury did not so find.

Upon the testimony the damages do not appear to be excessive.

Petition denied, and case remitted.