Idaho.] HOPKINS v. UTAH NORTHERN RY. CO. upon examination of the record, he was of the opinion that the said assignment of error was well taken, and moved that the cause be placed upon the calendar, the judgment be reversed, and the case remanded for a new trial. By consent of the attorneys for the defendant the said motion was submitted without argument. Our criminal practice act (page 409, Rev. Laws 1874-75) provides as follows: "Sec. 324. If the sufficiency of the facts alleged as a ground of challenge be denied, the adverse party may except to the challenge. "Sec. 325. Upon the exception, the court shall proceed to try the sufficiency of the challenge, assuming the facts alleged therein to be true. "Sec. 326. If, on the exception, the court deem the challenge sufficient, it may, if justice require it, permit the party excepting to withdraw his exception, and to deny the facts alleged in the challenge. If the exception be allowed, the court may in like manner permit the amendment of the challenge. * * * court shall proceed to "Sec. 327. If the challenge be denied, the try the question of fact.” Section 322 specifies the intentional omission of the sheriff to summon one or more jurors drawn as a good cause of challenge to the panel. An exception to a challenge in our criminal practice is practically a demurrer thereto, and admits the facts stated therein. An exception to a challenge and a denial of it has sometimes inadvertently been confounded as This seems to have been so regarded by the dismeaning the same thing. trict attorney in the case at bar. An inspection of the statute, however, indicates that they bear the same relation to each other in our criminal practice as the demurrer to the complaint and denials in the answer do in our civil practice. The district attorney having failed to deny the challenge, the facts stated therein were admitted. The intentional omission of the sheriff to summon the juror McIrving was thereby admitted; and, such omission being designated as a ground of challenge by section 322 of our criminal practice act, it was a good cause of challenge to the panel, and the challenge should have been sustained. The motion is granted, judgment reversed, and the cause remanded for a new trial. HAYS, C. J., and BRODERICK, J., (2 Idaho [Hasb.] 300) concur. HOPKINS . UTAH NORTHERN RY. Co. 1. NEGLIGENCE-RAILROAD-CONTRIBUTORY NEGLIGENCE. Where a suit is brought against a railway company to recover damages for injury to property by reason of the negligence of the agents or servants of the company, and defendant relies on such contributory negligence of the plaintiff or his servant as to prevent a recovery, this is a defense to be established by the defendant.1 2. TRIAL-ORDER OF PROOF-CROSS-EXAMINATION. It is a general rule that a defendant should not open the defense by a cross-examination of plaintiff's witnesses, but the application of this rule must rest largely in the sound discretion of the trial court. 3. APPEAL INCOMPLETE RECORD-PRESUMPTION. Where a refusal to give instructions requested by a party is assigned as error, the supreme court will look into the entire charge to determine whether such refusal was prejudicial; and, where the record shows that a charge was given which is not brought here for consideration, it will be presumed that the trial court gave all the instructions necessary to assist the jury in arriving at a just and proper verdict. (Syllabus by the Court.) Contributory negligence is to be pleaded by way of defense, not to be negatived by plaintiff's pleading. Thorpe v. Missouri Pac. Ry. Co., (Mo.) 2 S. W. Rep. 3, and note. See, also, Huckshold v. St. Louis, I. M. & S. Ry. Co., Id. 794. Appeal from Third judicial district, county of Bingham. P. L. Williams and Homer Stull, for appellants. Smith & Wright, for respondents. BRODERICK, J. This action is to recover damages for killing a team of horses, and the destruction of a wagon and harness of the plaintiff, which is alleged to have been caused by the negligence of the defendant company, about the first day of November, 1885, near Blackfoot, in this territory. The complaint alleges, in substance, that defendant was a corporation duly incorporated, etc.; that plaintiff was the owner of a team and wagon worth $450; that, at a time and place named, the team and wagon were negligently run against and over by defendant's locomotive, the team killed, and wagon and harness damaged; that the accident happened through no fault of plaintiff, but resulted from the carelessness and negligence of the agents and servants of the defendant; and that by reason of such negligence the plaintiff was damaged in the sum of $350. The defendant answered, denying specifically each allegation of the complaint except that defendant was a corporation. In May, 1886, the case was tried before the court with a jury, which resulted in a verdict and judgment in favor of the plaintiff for $225 and costs. The defendant moved for a new trial. Motion overruled by the court, and from this order and the judgment the defendant appeals, and assigns as error-First, that the evidence is insufficient to justify the verdict of the jury, in this: that it does not show that the defendant was negligent in the premises, or that any negligence on its part caused the injury complained of, and constituting the cause of action herein; and in that it does show that the plaintiff's servant, Charles Chestine, who was driving the team, was negligent in not looking along the track to discover the approach of an engine as he neared the crossing, and that his negligence in that connection caused, or contributed to cause, the injury complained of; second, errors in law occurring at the trial, and excepted to by defendant, in excluding certain evidence sought to be introduced by cross-examination of plaintiff's witnesses; third, that the court erred in refusing to give certain instructions to the jury requested by defendant's counsel. The evidence is undisputed that the team and the train were coming from the north; that the train was running at rapid speed; that the highway upon which the team was moving, for some distance above the crossing, runs nearly parallel with defendant's road; that about 80 rods above the crossing was a whistling-post; that the accident happened at the crossing, and at the time stated in the complaint. The rules of defendant in force at the time of the alleged accident were identified and received in evidence at the trial, but do not appear in the record. The case seems to have been tried, however, on the theory that the rules required the whistle sounded when a train was nearing a crossing, and we think there is sufficient proof in the record from which we may infer, for the purposes of this appeal, that this was the requirement of the rule. Each party introduced evidence before the court and jury, as to whether or not the whistle was sounded, or other signal given, before the engine reached the crossing, and on this question there seems to have been a substantial conflict in the testimony, all of which was submitted to the jury, and the question is settled by the verdict. But it is contended that even though the defendant was negligent, that the plaintiff, by the carelessness of his servant, who was at the time in charge of the team. contributed to the result and injury, and that, therefore, the defendant is not liable. In this case the burden was on the plaintiff to prove, in the first instance, that his property was injured and destroyed, for which he seeks redress, and that such injury was done by the locomotive of the defendant at or about the time and place charged in the complaint, and that such injury was the result of negligence of the agents and servants of the defendant. Idaho.] HOPKINS v. UTAH NORTHERN RY. CO. These facts proven, with the amount of damages sustained, made a prima facie case for the plaintiff. Then the burden shifted to, and was cast on, the defendant to overcome the case made by the plaintiff, by showing that the agents and servants of defendant were on this occasion exercising due care and caution; or, if it relied on such contributory negligence of the plaintiff or his agent as to prevent a recovery of judgment by plaintiff, that was a defense to be proven and established by defendant. Railway Co. v. Gladmon, 15 Wall. 401; Indianapolis, etc., R. Co. v. Horst, 93 U. S. 291. We are aware that there has been a contrariety of opinion on this question, but we are entirely satisfied with the rule as settled by the above-cited authorities. We see no error in the ruling of the trial court in excluding the evidence sought to be adduced by the defendant by cross-examination of plaintiff's witnesses as tending to show contributory negligence on the part of plaintiff's servant. It is a general rule that the defendant should not open his case by a cross-examination of plaintiff's witnesses; but the application of this rule must necessarily rest largely in the sound discretion of the trial court. The record shows, however, that the defendant, to make out its defense, was permitted to introduce all evidence offered as to the negligence of plaintiff's servant, and this question was also submitted to the jury. In this state of the case it is unnecessary to determine here whether, under our practice, the defendant should have pleaded contributory negligence as a predicate for the proof on this point or not. The remaining question is as to the instructions requested by defendant's Counsel contend that the evidence shows counsel, and refused by the court. that the accident happened in a level, open country, where there was no obstruction to prevent the driver from seeing the approaching engine in time to have stopped or turned aside, and thus have avoided the collision; and that the instructions refused were proper, and should have been given to direct the attention of the jury to these facts. It is doubtless the duty of a person approaching a railroad crossing to listen and look if he is in a position where looking will avail him; and if, under all the circumstances, he has reason to suspect or apprehend danger, and does not use his senses, but heedlessly goes on, and is injured in person or property, he alone is responsible for the consequences of such negligence. But in this case the teamster was driving in advance of the approaching train, with his back towards it, and he testifies, in substance, that he heard no signal of any kind, and saw nothing to indicate danger, until within a short distance of the crossing, and where the highway gradually turned towards the crossing, and that then and there the horses became affrighted, and commenced jumping and plunging towards the crossing; that he was wholly unable to stop or manage them; that he finally sprang out of the wagon in time to save himself harmless; that the collision took place: that the horses were killed, and the wagon and harness destroyed. There is other evidence which corroborates this testimony. The trial court is required to give such instructions as are applicable to the issues and facts of each case, but is not required to state propositions of law, however sound they may be, which are not applicable, and will not aid the jury in reaching a correct conclusion. Indianapolis, etc., Co. v. Horst, supra; U. S. v. Camp, 10 Pac. Rep. 226. The record shows that an instruction defining negligence, etc.. was given, which nowhere appears in the transcript. It has been held by this court that, in determining whether an instruction given was prejudicial, the entire charge should be looked into; and if the charge, as a whole, fairly presented the case to the jury, that the verdict would not be disturbed. People v. Bernard, 10 Pac. Rep. 30. The same rule will apply where instructions are refused. The reason for the rule is apparent. We are here asked to reverse a judgment because certain instructions calling the attention of the jury to the alleged negligence of the plaintiff were re fused, and it appears from the record that an instruction was given by the court, of its own motion, on this question; but the instruction, as given, is not brought here for our examination. Every intendment is in favor of the judgment, and the regularity of the proceedings; and the presumption is, until the contrary appears, that the court gave the instructions necessary and proper, under the facts of the case, to assist the jury in arriving at a just verdict. This presumption cannot be overthrown by a partial view of the instructions given. Those not given may have been refused for the reason that they had been substantially given. If so, the court was not bound to repeat them. No error appearing, the judgment is affirmed. HAYS, C. J., and BUCK, J., concurring. (2 Idaho [Hasb.] 305) BOWMAN and others v. AYERS. (Supreme Court of Idaho. February 21, 1887.) APPEAL FINDINGS OF FACT. Where the findings of fact are not responsive to the material issues, and are so uncertain that they would not warrant a judgment thereon, the case should be reversed. (Syllabus by the Court.) Appeal from Ada county, Second judicial district. Brumback & Lamb, for appellants. Huston & Gray, for respondent. HAYS, C. J. This case, tried before the court without a jury, was brought to restrain the defendant from interfering with plaintiffs' water-ditch, and for damages for injury to the same. The defendant claims an interest in said ditch. The title to, capacity of, and cost of constructing the ditch were all in issue. There was also an issue as to the allegation that the defendant had obstructed the ditch, cut down its banks and flumes, and caused the waters thereof to run to waste. It was also alleged that defendant was committing waste of the waters of said ditch; that he threatened to continue the same, and would, unless restrained by injunction, damage and injure the ditch, which was plaintiffs' property. All of which defendant denied. The court found that plaintiffs and defendant had each an interest in the ditch, but failed to find the capacity of the ditch, or its cost, or the interest specifically that each party had therein. This became necessary in order to determine whether or not the defendant had taken more water from the ditch than he was entitled to. If the ditch is as large as alleged in the complaint, it must have a carrying capacity of about 2,000 inches of water. It is only claimed that defendant drew therefrom 75 inches; yet from anything appearing in the findings the defendant's interest may have been much greater than the plaintiffs'. How, then, are we to draw our conclusions of law? How can we determine the rights of the parties without these findings? Although there is an allegation of waste, and that defendant threatens to continue the same, and an issue upon this allegation, the court fails to find upon this issue, yet grants an injunction. It is found in the sixth finding of fact that "in 1883 defendant constructed a ditch of his own, bringing water upon his land, and using a portion of plaintiffs' ditch upon or through defendant's land. The portion of the plaintiffs' ditch thus used was the part constructed in 1874, and adopted by the new ditch;" yet the court had before found that this ditch, which was constructed in 1874, was partly owned by the defendant. If the defendant was a joint owner in the old ditch, and the new ditch adopted this old ditch, and enlarged the same, the defendant would still have his interest in the ditch. It might be said, in a sense, that the ditches became commingled by the act of the plaintiffs; but this, certainly, would not divest defendant of his property therein. The conclusions of law and judgment were not warranted by the findings. If the court is correct, in finding 6, we are unable to see why the water which defendant by his industry and enterprise has brought upon his own land may not be used by him for any useful purpose, as he pleases. The granting of an injunction restraining the defendant from using this water except upon his own land we think was error; the findings also being insufficient. The judgment is reversed. Case remanded for a new trial. BUCK, J., concurring. BRODERICK, J., expressing no opinion (2 Idaho [Hasb.] 307) LALANDE and others v. MCDONALD and others. (Supreme Court of Idaho. February 23, 1887.) 1. APPEAL-JUDGMENT OF NONSUIT. A judgment of nonsuit is a final judgment within the meaning of Idaho Code, from which an appeal will lie. 2. NONSUIT-EJECTMENT. Where an action to recover specific real property is brought pursuant to section 2326 of the Revised Statutes of the United States, and there is no evidence for the consideration of the jury, a nonsuit may be granted. (Syllabus by the Court.) Appeal from First district court, Shoshone county. W. B. Heyburn, A. E. Mayhew, and W. W. Woods, for appellants. F. Ganahl, Albert Allen, and G. W. Stapleton, for respondents. HAYS, C. J. This action was commenced pursuant to the provisions of section 2326 of the Revised Statutes of the United States and the act of March 3, 1881, amendatory thereof to recover the possession of specific real property. The plaintiffs allege in the complaint, among other things: "(1) That they were citizens of the United States," which was admitted by the defendants. "(2) That the plaintiffs now are, and ever since the sixteenth day of August, 1884, have been, through their grantors and predecessors in interest, the owners and entitled to the possession of that certain tract or parcel of mining ground known and called the 'Lalande Claim' and [describing the same] containing an area of thirteen and 18-100 acres." This the defendants deny. "(3) That on the sixth day of November, 1885, the said Scott McDonald and George P. Cater have made an application in the United States land-office at Lewiston, Idaho, for a United States patent for a certain mining claim called the 'Poorman Lode and Mining Claim,' and have caused a survey of the same to be made, upon which said application for patent is based, and which said survey overlaps a portion of the land above described as belonging to the plaintiffs herein, and which portion, so covered by said survey and application for patent, is described by metes and bounds as follows, to-wit, [the premises are here described, containing an area of six 40-100 acres of land.]" The defendants admit the making of the application for patent for the mining claim called the "Poorman Lode and Mining Claim," and the survey thereof, and that it includes the aforesaid land described in subdivision 3 of the complaint, but deny that the same, or any part thereof, belongs to the plaintiffs, or either of them. "(4) That on the sixth day of November, 1885, the said Scott McDonald and George P. Cater, by the order of the register of the landoffice, caused notice of their said application to be published, notifying all persons claiming adversely any portion of the mining ground covered by the Poorman Lode mining claim, as surveyed, to file their adverse claim," etc.; that the plaintiffs filed their adverse claim to the tract of mining ground hereinbefore described; that said claim was duly allowed; and this action is |