heavy lurch, and knocked a number of people down who were standing in the aisles where I was. I was standing up and the young lady just inside the door, and we both got knocked down, and fell over. I was facing the forward end of the car, and both of us got knocked over to the right. The women screamed. Some of them said the car must have jumped the track. I cannot remember that the car slowed up prior to that time. The train ran faster than I have

been in the habit of feeling trains run.

I thought

it ran faster than I had ever seen it run on that road. But where I saw the lurch down on the mole. I could not positively define the point, it was running at an extraordinary fast rate of speed."

The testimony of these witnesses is controlling upon these questions, and applying the law given by the trial court to the jury as to the great care which should be exercised by a common carrier where the cars were so heavily overloaded, as in the present case, the jury were entirely justified in saying that the defendant was guilty of negligence in running its train at the rate of speed that this train was moving, especially in view of the defects in the track or roadbed, whatever they may have been, that caused the jar or jolt to the cars, which, as we have seen, so greatly disturbed the passengers. The defendant should not have allowed so many passengers to have gone upon its cars, and, if it was unable to prevent them from so doing, it had the right to refuse to move the train under such circumstances; but, if it did not pursue that course, and undertook to transport all passengers that were on board, whether within the cars or upon the platforms, it was under obligations to exercise the additional care commensurate with the perils and dangers surrounding the passengers by reason of the overcrowded condition of the cars.

Was the plaintiff guilty of contributory negligence? In view of the instructions of the court, it is clear that he was not. In speaking as to the claim of the defendant that warning was given, the court instructed the

jury: "If you believe the plaintiff did not in fact hear or know of any warning given, if you believe any was given, then he cannot be affected by such warning, and was justified in taking passage on that train." The plaintiff testified in unequivocal terms that he did not hear or know of any warning given,, and many other passengers testified to the same effect with reference to themselves. The evidence in this regard is sufficient to create a substantial conflict as to whether in fact the passengers were warned not to crowd the train and that a second train would soon arrive; but, beyond the question of conflict of evidence, the plaintiff says he heard and knew of no such warning, and, under the law given to the jury which we have just quoted, he had a right under those circumstances to go upon the train, and, if there was no room within the car, he then had a right to stand and ride upon the platform; and, being so situated by the force of circumstances over which the defendant, as we have seen, had complete control, he was a lawful passenger, with all the rights of any other passenger, and entitled to the same care and consideration at the hands of the company. The fact that he was compelled to stand upon the platform, and was thus more unfortunate and more inconvenienced than his friends who were able to crowd within the car, is wholly immaterial. Their legal rights were the same. The duties and obligations of the defendant to them were the same.

It is claimed the verdict is contrary to law in this, that the court charged the jury that if they found as a fact that other cars, reasonable in number and seating capacity, were produced by the defendant within a reasonable time, prior to or after the time at which plaintiff took his position on the car, and on which plaintiff might have safely ridden, and that plaintiff was apprised thereof, an eager desire on his part to take the overcrowded car in order to reach his destination was not a reasonable cause of necessity. The evidence covered by the instruction, substantially stated above, is not

such as to make the question one of law. It may be said that the evidence is fairly conflicting, both as to the additional accommodations to be furnished, and that the plaintiff was apprised thereof. Again, all presumptions are in favor of the verdict. And if the court's charge includes instructions of law sufficient to support the verdict when applied to the evidence found in the record, then the verdict must be upheld, even though there be no sufficient evidence to support the verdict upon some other theory of the case covered by other instructions of the court. It follows that if the evidence, when considered in the light of the law we have quoted, is sufficient to support the verdict, then the verdict cannot be against law.

We also think the motion for a nonsuit was properly denied. Much that we have already said as to the sufficiency of the evidence to support the verdict is opposed to appellant's contention in this regard. As we have seen, the evidence established a want of proper care in the running of the train at a high rate of speed, and doubly so when we consider that defects in the track or other causes existed which caused the severe jolting and jarring of the cars. Neither was the defendant guilty of contributory negligence in riding upon the platform under the circumstances depicted by his evidence. The law given to the jury by the court upon this point is entirely sound.

For the foregoing reasons, it is ordered that the judg ment and order be affirmed.

HARRISON, J., and VAN FLEET, J., concurred.

[No. 15313. Department One.-June 11, 1894.]

J. W. FAULKNER (E. T. STEEN SUBSTITUTED) APPELLANT, v. JOSHUA HENDY ET AL., RESPONDENTS.

APPEAL FROM JUDGMENT-JUDGMENT-ROLL-REPORT OF REFEREE.-It is only the finding of a referee upon the whole issue that must stand as the finding of the court, and form part of the judgment-roll; and a report of testimony made under a first order of reference which does not contain findings of fact does not constitute a part of the judgment-roll, and cannot be considered upon an appeal taken upon the judgment-roll alone. TRUST-FOLLOWING TRUST FUND PROFITS-COMMINGLING OF FUNDS.— Where a trustee commingled the funds of the beneficiary with his own, in the prosecution of a large business in which he had invested a capital in comparison to which the trust fund was insignificant, and the trust money was not essential to the business, and did not add materially to the profits, the profits of the business cannot be considered as earned by the use of the trust raad, and the beneficiary is not entitle to follow the fund, and to take so much of the property purchase with the common fund as the successors of the trustee canot show to be theirs.

ID. ALLOWANCE OF COMPOUND INTEREST-DATE OF JUDGMENT NEW TRIAL.-Where it appears that no profits had been made by a rustee from the use of trust money in his business, which can justly be said to be profits made by the use of the trust fund, the trustee is chargeable for such use with compound interest from the date of his appropriation of the fund until the entry of final judgment; and where a Judgment had been entered for such interest upon a urst trial, which was set aside by the granting of a new trial, it is error to allow simple interest only from the entry of the first judgment.

COSTS-EQUITY CASE-DISCRETION-APPEAL.-The allo ance of costs in ar equity case is matter within the discretion of the court, and without a statement or bill of exceptions that discretion cannot be reviewed upon appeal.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco.

The facts are stated in the opinion of the court and in the opinion reported in 80 Cal. 306.

Clark E. K. Royce, and George W. Chamberlain, for Appellant.

A trustee cannot deal with the trust property so as to derive a benefit to himself, or use the trust funds for his own profit in any kind of speculation or business. (2 Pomeroy's Equity Jurisprudence, secs. 1075, 1076;

Perry on Trusts, sec. 427; Civ. Code, sec. 2229.) The profits made by the trustee by the use of trust funds belongs to the cestui que trust. (2 Pomeroy's Equity Jurisprudence, sec. 1075, note; Docker v. Somes, 2 Mylne & K. 655; Gunter v. Janes, 9 Cal. 643.) Where the trust estate is mingled with private funds of the trustee, the trustee must bear any loss consequent upon the confusion. (Brackenridge v. Holland, 2 Blackf. 377, 382; 20 Am. Dec. 123; Hart v. Ten Eyck, 2 Johns. Ch. 108; Willard v. Rice, 11 Met. 493; 45 Am. Dec. 226; Tuttle v. Gilmore, 36 N. J. Eq. 617; Dean v. Thwaite, 21 Beav. 621; Little Pitt. Con. Min. Co. v. Little Chief Con. Min. Co., 11 Col. 223; 7 Am. St. Rep. 226; Cook v. Addison, L. R. 7, Eq. Cas. 470.) Plaintiff is entitled to a money judgment, which shall be a charge upon all the property of the defendants, for all or any portion of the common fund, which they cannot show to belong to themselves, and which they have expended upon separate and distinct ventures, which have been a total loss, or in purchasing property which the plaintiff elects not to take in kind, or in personal expenses, with legal interest from the time when such expenditure was made. (Peters v. Bain, 133 U. S. 670; Frelinghuysen v. Nugent, 36 Fed. Rep. 229; 2 Lewin on Trusts, *907.) Under the respondents' own authorities the rule is recognized that the trustee is liable to the cestui que trust in such a case as this for all profits made by the former. (See Barney v. Saunders, 16 How. 542; Utica Ins. Co. v. Lynch, 11 Paige, 524; Schieffelin v. Stewart, 1 Johns. Ch. 625; 7 Am. Dec. 507; Brown v. Rickets, 4 Johns. Ch. 305; 8 Am. Dec. 567; Clarkson v. De Peyster, Hopk. Ch. 426; Lindley on Partnership, 5th ed., 536.) The report of the referee is a special verdict, and is therefore a part of the judgment-roll. (Thompson v. Patterson, 54 Cal. 546.)

Cope, Boyd, Fifield & Hoburg, W. H. H. Hart, and Nowlin & Fassett, for Respondents.

The report of the referee constitutes no part of the judgment-roll, and must be disregarded by this court.