Day, Ch. 'J.
— I. One of the assignments of error is the refusal of the court to grant a new trial upon the ground of newly discovered evidence. This assignment is not argued, and hence, as has been frequently held, it is waived.
II. No exception was taken to any ruling upon the trial, nor to any of the instructions given. No instruction was asked which was refused. The only question, therefore, which we can consider, is the sufficiency of the *751evidence to support the verdict. It is claimed that the evidence does not warrant the finding that there was any negligence in the construction of the ditch, nor that the plaintiff was in the exercise of ordinary care at the time the injury was sustained. Upon both of these points the evidence is conflicting. Upon neither is it so wanting as to warrant the conclusion that the verdict was the result of passion or prejudice. "We cannot, therefore, desturh the verdict. ' The judgment is
Affirmed.