— We' are of opinion that the judgment must be aErmed. While the fact that B. S. Thompson actually received the net sum of six hundred and sevеnty-one dollars and" five cents would be incompetent as рroof of what his cattle sold for on the market, it was certаinly not hearsay, and no other objection appears to have been made to the testimony. The trial court’s cоnsideration of the exception was limited to the partiсular objection made (Rule 58, for District and County Courts'), and obviously wе should not go beyond it. See Rector v. Hudson,
The seсond and third assignments are overruled on the ground that the bills of exсeptions to the evidence therein complained of fail to show error in the court’s rulings. The statement in bill of exception number 3 that the witness “had already testified that he did not accompany the shipment,” etc., and in bill number 4 that the grade of appellee’s cattle had not been shown, and that the cоpies of the “Daily Drovers’ Telegram” had not been authenticated, appear merely as assertions of counsel in stating the grounds of objection, and are not otherwise shown in the bills to be true. It has often been held that the recitation of fаcts in objections to testimony must be verified by other parts of thе bill In order to require consideration on appeal.
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See Anderson v. Anderson,
The charge of the court is by no means perspicuous, but the оbjections thereto in the fourth and fifth assignments hardly require, we think, a rеversal of the judgment. By the first paragraph of the charge thе jury, in order to find for appellee at all, were required to find not only that appellee’s cattle “lost weight” because of negligent delay, but also that appellee thereby “lost on the difference of price in the market.” The charge, therefore, in submitting the measure of damage that, “If you find that plaintiff is entitled to recover damages under the foregoing paragraph, then the measure of his damages would be the difference of market value of prices from Tuesday until Friday, and the difference in shrinkage by such delays,” is not on the weight of the tеstimony in that both elements were submitted. If so, in assuming that the cattle should have sold on Tuesday’s market and were sold on Friday’s market, nothing is pointed out in the statements under these assignments that shows the assumptions to be prejudicial. In other words, the statement fails to show what other day, if any, than,Tuesday was the proper day оf sale, or that market prices were materially different, on the several days between Tuesday and Friday.
The same character of answer must be made to the remaining assignment, cоmplaining of the rejection of special charge numbеr one. The statement sets out the rejected charge оnly. If facts existed rendering its rejection prejudicial, they should hаve been pointed out, especially in view of the court’s charge which substantially, if in-artistically, placed the burden of proof upon appellee to prove negligence.
We conclude that the judgment should be affirmed, and it is so ordered.
■ Affirmed.