#### The Toledo, Peoria and Warsaw Railway Co. v. Daniel Parker.

Practice—instructions must be excepted to when given. No advantage can be taken in this court to the giving of an erroneous instruction in the court below, unless it appears exception was taken at the time.

Appeal from the Circuit Court of Iroquois county; the Hon. H. J. Pillsbury, Judge, presiding.

Messrs. Ingersoll & Puterbaugh, for the appellant.

Messrs. Blades & Kay, for the appellee.

Mr. Justice Sheldon

delivered the opinion of the Court:

This was an action against the railway company, to recover for damages caused by fire communicated by a locomotive engine.

*527The company appeals from the judgment rendered against it, and assigns as error the giving and refusing of instructions, and that the verdict was against the evidence.

The instructions given for the plaintiff, or its jiortion of them, wrere wrong; hut there does not appear to have been any exception taken to them when given, and no advantage can be taken of the alleged error.

The refusal of an instruction for the defendant was excepted to, which was as follows:

> “ The court instructs the jury, that negligence on the part of defendant in setting fire to the grass, from whence it communicated with the plaintiff’s fences, is not to .be presumed, and unless the plaintiff has shown negligence on the part of the defendant by a preponderance of the evidence, you will find for the defendant.”

Negligence was not to be presumed in the absence of evidence to warrant the presumption, but if there was such evidence, the presumption might be indulged. To say, absolutely, that negligence was not to be presumed, was to pass upon the evidence, and virtually say that it was insufficient to warrant the presumption. We do not think the court was required to give the instruction.

We see no reason to disturb the finding of the jury upon the evidence. The judgment will be affirmed.

Judgment affirmed.