SUPREME COURT OF THE CANAL ZONE.

It is, therefore, ordered and adjudged that the judgment and verdict of the court below be affirmed, and that this case be remanded with instructions that the court proceed according to law.
Affirmed.
CONCURRING OPINION OF JUSTICE OWEN.
I concur in the order of affirmance, but in so doing my view of the testimony is such that I do not believe the defendant "grossly" guilty of criminal negligence. True, the courts of
some jurisdictions have announced the rule-"Gross negligence is only ordinary or simple negligence." Grilly Collier Co., 12 Jur., N. S. 727-but the term is doubtless to be understood as meaning a greater want of care and a more wanton and reckless disregard for duty than is implied in the general term of "criminal negligence." From my view of the law and testimony there is sufficient evidence to support the judgment of the trial court and as announced in the opinion of the Chief Justice, an appellate court will not disturb the judgment of a trial court, when the question in dispute or difference, is as to the preponderance of testimony or its relative weight. However, I do not find in the record such evidence as would support the theory that the defendant was grossly guilty. True, one having in charge and under his control such dangerous agencies as locomotives, should be held to the very highest regard for duty and service, but in the case at bar the question and evidence of intoxication must be of slight or-no moment or consequence as the only evidence offered by the appellee, attempting to charge or establish drunkenness was from the fireman who also said he did not see the defendant take a drink or smell liquor on his breath. The defendant denied in toto that he had taken a drink of intoxicating liquor that day. We next pass to the duty and action of the defendant just prior to the moment of danger. Conditions are represented in one way by the fireman and earnestly denied by the defendant. As to the obedience of Rule 15 of the railroad company, we find that it was not as to the slight or total ignorance of such rule wherein the defendant is charged with being derelict, but his failure to properly interpret the same according to the understanding and meaning placed thereon by the expert, that caused the trial court in his consideration of the issues to find that the weight of testimony was sufficient to sustain the charge of the government and find the defendant guilty as alleged in the information. However, in our mind the evidence failed to disclose such a total

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