YALLIANT, J.
The allegations of the petition are to *472the effect that plaintiff is the owner of certain land in St. Lonis county, abutting a public road known as Page avenue; that defendant, a street railroad corporation, had constructed on Page avenue, immediately in front of plaintiff’s property and adjacent to the sidewalk on which it abutted, an embankment on which its street railroad was built, from four to ten feet higher than the grade of the street or public road, and thereby shut off ingress and egress to and from plaintiff’s property, to his damage, $5,000. Defendant by its answer admits that it is a corporation and denies all the other allegations of the petition, then it specifically pleads that its roadbed is on grade with the public road, except at a point where it crosses a ravine; “that the grade so constructed at said ravine is not of such height as to injure or damage the property of the plaintiff as stated in said petition.”
The cause was tried by court and jury. There was evidence to support the allegations of plaintiff’s petition, and evidence on behalf of defendant to the contrary. At the close of the plaintiff’s evidence, and again at the close of all the evidence, defendant asked an instruction to the effect that plaintiff was not entitled to recover, which was refused and defendant excepted.
The court gave instructions concerning which no complaint is made. There was a verdict for the defendant, a motion for a new trial, which the court sustained on the grounds that the verdict was “against the law and evidence, against the weight of the evidence and against the instructions of the court.” Erom the order granting the new trial the defendant appeals.
Appellant presents but one point in its brief, that is, that the instruction in the nature of a demurrer to the evidence should have been given, because there was no evidence to show that the land in question belonged to the plaintiff. There was *473in fact, however, no real challenge of the plaintiff’s title during the trial, from the beginning to the end of which the land was spoken of by counsel on both sides as the plaintiff’s property, and that was a fact assumed. In the defendant’s answer it is referred to as “the property of the plaintiff.” In cross-examining the plaintiff- himself, who was a witness, the counsel for defendant frequently referred to the land as “your property,” and in the examination of other witnesses it was designated as the “Earrar property,” “the B. O. Earrar’s trustee’s property.” Besides, the defendant’s bill of exceptions shows that there was evidence of title, although it is not set out. At the beginning of the trial, when the plaintiff was the witness on the stand, the bill of exceptions shows this question (seemingly addressed to counsel for defendant): “(Mr. Jones) : Do you want us to show his trusteeship? We have got the deed here? Do you want us to introduce it in evidence? (Mr. Lehman): Yes. Q. (to the witness): Have you the deed? A. Yes, sir. Q. Is this a deed to you of the property? A. . This is the deed to me of the property by the former trustee that was confirmed by an order of the court. Q. (Mr. Lehman) : Does the deed show the parties in interest? A. Yes, sir. (Mr. Jones): We offer in evidence deed from Hade B. Payne, trustee to Bert O. Earrar, trustee of the property described in the petition. It is marked ‘Exhibit A.’ (Clerk insert.) (Mr. Jones) : We also offer in evidence record of the circuit court of St. Louis county in case 4468, May term, 1895, found in record book 15, page 413, of the circuit court of St. Louis county. Q. You became trustee of the property in 1895? A. Yes, sir; January 1.”
Neither the deed, nor record called for in the bill of exceptions, is inserted in the record. These it was the duty of appellant to have embraced in the record it brings to this court *474if it desires to question the sufficiency of the proof on that point.
But after going through the.appellant’s bill of exceptions of more than seventy printed pages we are convinced that the attention of the court and counsel was directed alone, throughout the trial, to the question of the alleged injury to the plaintiff’s property, and that it was his property was a fact assumed on both sides. The point now presented is presented for the first time in this court.
The trial judge was of the opinion that the verdict of the jury was against the weight of the evidence and for that reason set it aside and granted a new trial, as it was his duty under those conditions to do, and his judgment is affirmed.
All concur.