Parkins v. Missouri P. R. Co. explicit an objection to it will not be regarded unless the matter is brought to the attention of the trial court by a request for one that is satisfactory. Where it is claimed that instructions given to a jury were too general, and where a more explicit charge was not requested, the objection cannot be entertained. The Burlington & M. R. R. Co. v. Schluntz, 14 Neb., 421; The Republican V. R. Co. v. Fellers, 16 Neb., 169; The Republican V. R. Co. v. Fink, 18 Neb., 89; The Sioux City, etc., R. Co. v. Brown, 13 Neb., 317; Carter White Lead Co. v. Kinlin, 47 Neb., 409. In the case of Barr v. City of Omaha, 42 Neb., 341, it was held that to make available an error in the giving of an instruction, that does not fully state the issues in the case, the parties complaining must properly request a full and complete instruction upon the point. 4. Plaintiff complains of the giving of instruction No. 5, and alleges that the court erred in injecting therein the issue as to whether or not, as a matter of fact, the gravel in question was suitable for ballast; and that the sole issue in the case was its suitableness in the judgment of the defendant's superintendent. A careful examination of this instruction shows us that no such issue was injected into the case. It closes as follows: "Such as in the judgment of the superintendent would be fit for bal· lasting defendant's road-bed." But even if the court had injected this issue of fact into the case by this instruction, it would not have been erroneous, because that issue was tendered by defendant's answer, and was accepted by the plaintiff's reply, and was tried without objection. That matter was put directly in issue, and evidence was received on that question for the purpose of determining whether or not defendant's superintendent acted in an arbitrary, unreasonable and unjustifiable manner in finding that the gravel was not suitable for ballast. 5. Plaintiff complains of the giving of instruction No. 9, which is as follows: "You are the sole judges of the credibility of the witnesses, and of the weight to be given to their testimony." This instruction is discussed Parkins v. Missouri P. R. Co. by the plaintiff in connection with instruction No. 3, which we have heretofore commented on. We are unable to see how instruction No. 3 in any manner affects the giving of instruction No. 9. This instruction is correct, as an abstract proposition of law, and was properly given. It is sufficient to say that the instructions taken together, while not as artistically drawn as they might have been, fairly presented the case to the jury, and we are unable to say that there was reversible error in this case in giving or refusing instructions. 6. Plaintiff alleges that the court erred in receiving and rejecting certain evidence. These assignments of error are too general, and under our rules we are not required to consider them. We have carefully examined the bill of exceptions and the record, however, and are unable to say that there was any prejudicial error in this respect. 7. The plaintiff contends that the judgment of the lower court should be reversed and a new trial granted on account of the alleged misconduct of one of the jurors. It is claimed that the juror Smith rode with the defendant's superintendent from Papillion to Omaha in his special car at the invitation of the attorneys for the defendant, and was entertained with refreshments on the way; and it is alleged that such action was improper and was prejudicial to the plaintiff. This matter was submitted to the court upon affidavits filed by both parties with the motion for a new trial, and the facts in relation thereto were determined by him upon the hearing of such motion. We are unable to say that the court erred in his judgment and finding in relation to that matter. It ap pears that the trial commenced on the 4th day of October at Papillion, Sarpy county, and continued until the evening of the 5th, when court adjourned until the following Monday morning, or the morning of the 8th of October. It appears from the affidavits and the evidence that the attorneys for the plaintiff, the juror and witnesses, together with the court and the reporter, were all anxious to get to Omaha as soon as possible; that it was at first Parkins v. Missouri P. R. Co. supposed that there would be no train on the Union Pacific road which would stop at Papillion until sometime late in the night. The defendant's superintendent, who was a witness in the case, had a car upon the track which was used by him for his office and his place of abode during the trial; that upon the adjournment of court inquiry was made of him to ascertain if he was going to take his car to Omaha, and he replied that he was. Mr. Ransom, one of plaintiff's attorneys, was very ill at the time, and was unable to sit up, and a request was made of the superintendent to allow him, and such other persons as desired to go to Omaha, to ride in his car to that place. He replied that he was perfectly willing to take as many as he could accommodate; that upon such invitation the counsel for the plaintiff, counsel for the defendant and the juror Smith, took passage to Omaha in the superintendent's car. The court and his reporter also intended to go to Omaha in that manner, but while they were waiting to hitch an engine onto the car, a special freight train came along on the Union Pacific road which was stopped for an instant so that the court and his reporter, who were at the station, took passage thereon; that while on the way to Omaha supper was served in the car; that all of the persons therein partook of the same, except Mr. Ransom, who was too ill to eat anything. It was made to clearly appear that no one conversed with Smith in relation to the case, and that nothing was said about it from the time they entered the car until Smith left them in the suburbs of Omaha. These facts were known to the plaintiff's counsel from the time they occurred until the close of the trial, and yet no objection was made by them in regard to the matter. It was never brought to the attention of the court in any way until after the verdict, when it was first mentioned in the motion for a new trial. Counsel for the plaintiff, with full knowledge of all the facts, were content to retain Smith as a juror in the case and speculate upon his verdict. If they believed that the transaction complained Parkins v. Missouri P. R. Co. of was prejudicial to the interests of their client they should have called the matter to the attention of the court at their first opportunity after its occurrence. Such action could then have been taken by the court as would have protected the interests of both parties to the suit. To remain silent was a breach of good faith on the part of counsel for the plaintiff, and after the coming in of the verdict they should not be permitted to complain of the result. When this matter was brought to the attention of the court by the motion for a new trial on the 11th of October, it was too late for plaintiff to avail him self of the objection, unless he could show by competent evidence, as a matter of fact, that the juror had become actually prejudiced in favor of the defendant; or that his mind was in such a condition that he was unable to render an impartial verdict in the case. No such showing was made. So far as appears from the record Smith was a competent juror, notwithstanding what may have occurred during the trial. The plaintiff by his conduct waived any objection to the transaction complained of, and the court did not err in overruling the motion for a new trial on that ground. It is apparent from the record in this case that it was fairly tried, and the jury having determined the questions of fact and rendered their verdict thereon, it should be allowed to stand. We therefore recommend that the judgment of the district court be affirmed. POUND and OLDHAM, CC., concur. Opinion on rehearing follows. AFFIRMED. Parkins v. Missouri P. R. Co. JOSEPH F. PARKINS V. THE MISSOURI PACIFIC RAILWAY COMPANY. FILED SEPTEMBER 17, 1903. No. 12,431. Commissioner's opinion: Department No. 1. 1. Trial: INSTRUCTIONS: PLEADINGS COPIED INTO: APPEAL AND ERROR. An abstract of pleadings, with a statement that it was incumbent on plaintiff to prove all his material allegations which were denied, is not prejudicial where the court by another instruction told the jury, preceding the statement by "that is," precisely what the points in controversy were. 2. Contracts: BREACH: DAMAGES: EVIDENCE REQUIRED. In an action to recover damages against a railroad company for refusing to carry out a contract to purchase gravel which was to be called for when wanted and to be in the judgment of the defendant's superintendent suitable for ballasting the road, where the making of any objection for unsuitability is denied, it is asking too much to require plaintiff both to prove an offer of gravel to which no objection on that ground was made during the life of the contract and also that the gravel was suitable. 3. Trial: INSTRUCTIONS: ERROR IN ONE NOT CURED BY ANOTHER: APPEAL AND ERROR. The fact that another instruction of different purport was given does not do away with the error of one which absolutely requires unnecessary proof to enable plaintiff to re cover. REHEARING of case reported ante, page 1. ERROR from the district court for Sarpy county. Tried below before SLABAUGH, J. Judgment below reversed. F. T. Ransom and Weaver & Giller, for plaintiff in error. John F. Stout, James W. Orr and B. P. Waggener, contra. HASTINGS, C. This case appears ante, page 1, and in 93 N. W. Rep., 197. Seven grounds for rehearing are set up in the motion. 1st. That the opinion proceeds on the ground that the contract was to furnish suitable ballasting, |