Mr. Justice Niehaus
delivered the opinion of the court.
4. Instructions, § 135*—non-necessity of offering. A party plaintiff is not required to offer any instruction relating to the measure of damages. 5. Appeal and error, § 892*—when error in instruction will not be reviewed. Where the declaration, in an action by a property'owner against a city for damages for injury due to overflow from a sewer, is not included in the abstract, any error in an instruc- ' tion will not be reviewed, if reference to the declaration is neces-, sary. 6. Municipal corporations, § 1115*—when verdict for damage due to overflow of sewer not excessive. Á verdict for $700 for physical discomfort and loss of crops due to the overflow of a sewer in time .of heavy rains, held not excessive. 7. Appeal and error, § 810*—what must be part of bill of exceptions. Questions concerning affidavits, which are filed in connection with a motion for a new trial, cannot properly be passed upon where the affidavits are not a part of the bill of exceptions. On Petition - for Rehearing. Trial—when misconduct of plaintiff before hearing of testimony should be brought to attention of trial court. The misconduct of a party plaintiff, in an action by a landowner against a city for damages for injury, due to overflow from a sewer, before the hearing of any testimony and at the time the jury are viewing the premises should, where the defendant’s officers have knowledge of the fact at the time, be brought to the attention of the court by a motion to discharge the jury or in some other manner, and the defendant may not wait until an unfavorable verdict is returned and then complain. Free access — add to your briefcase to read the full text and ask questions with AI