tion of the accuracy of the recollection and statements by the several witnesses who signed them as to the number of days and months they were at work. The memoranda upon the pay rolls as to the capacity in which the several men worked is not original evidence, and I exclude all such except in the individual instances where the attention of the witnesses was directed to such memoranda and opportunity afforded them to explain or deny the same. (Healy v. Wellesley, etc., Ry. Co., 176 Mass. 440, 57 N. E. 703.) As to the time books themselves, there is apparently a conflict of authority as to their admissibility, and I have serious doubts upon the question. I have concluded, however, to overrule the objection to these books, and also that to the timekeeper's books, letting the two sets of time books go in evidence, together with the pay rolls; but I exclude from the evidence all letters or memoranda appearing in these books by way of indication of the capacity in which or the places where the men worked. The field books are in a different situation, however. They came to the shift bosses from the timekeeper, who prepared them for use by writing in the lefthand column of each page the figures and words indicating the levels, stopes, drifts, and other places in which work was done each day and night by the two shifts, and by writing at the top of the page, at the head of column prepared, certain words such as 'Miners on Ore,' 'Miners on Dead Work,' 'Laborers,' 'Cars of Ore,' 'Powder,' 'Fuse,' 'Caps,' etc., indicating the places where men worked, the number working, the character of the work, and the consumption of supplies, etc. The shift bosses were supposed to fill in these columns with figures indicating the progress of the work in the mine and the consumption of material each day. These books were not correctly kept, and, as said by Mr. Hume, were not supposed to be accurate, and otherwise did not appear to be competent as evidence against the plaintiff. They were kept by a private corporation, solely for its own purposes and in the administration of its internal affairs, and I do not think, under any rule of evidence, they can be competent as witnesses to isolated and collateral facts in a suit between the corporation and a stranger."

The judgment of the court below is affirmed, with costs.

STRAUP and FRICK, JJ., concur.

BELNAP v. WIDDISON et al.

No. 1821. Decided May 9, 1907 (90 Pac. 393).

ΤΟ EVIDENCE.

1. TRIAL - INSTRUCTIONS - APPLICABILITY Where, in an action for injuries to plaintiff's crops by the overflow of defendants' irrigation ditch, it was shown that, when the overflow was discovered, immediate steps were taken by defendants to stop it and drain the water, an instruction that it was incumbent on plaintiff, if possible, by the exercise of ordinary care to drain. the water, and that, if she sat passively by and saw her crop destroyed, she was negligent, was erroneous as inapplicable to the evidence.

2. DAMAGES-PASSIVENESS OF PERSON INJURED-EFFECT. In an action for injuries to plaintiff's crop by the overflow of defendants' irrigation ditch, an instruction that, if plaintiff did not exercise ordinary care to protect the crop from damage, if it was within her power, then she herself was negligent, was objectionable as misleading the jury to consider such negligence a complete defense, when, if it existed, it was only relevant in mitigation of damages.

3. TRIAL INSTRUCTIONS-ABSTRACT PROPOSITIONS. Where it was undisputed that plaintiff's land was overflowed by water from defendants' ditch, and that the water caused whatever injury was occasioned without any intervening agency, an instruction that, if after the commision of the original act there intervened an independent act of others which in itself caused the injury complained of, then the original act was not the proximate cause, was objec tionable as abstract.1

APPEAL from District Court, Second District; before Justice J. A. Howell.

Action by Sarah Jane Belnap against James G. Widdison and others. From a judgment for defendants, plaintiff ap peals.

REVERSED.

1 Holt v. Pearsons, 12 Utah 63, 41 Pac. 560..

C. C. Richards and A. E. Pratt for appellant.

H. H. Henderson for respondents.

APPELLANT'S POINTS.

But there is no ground for presuming acquiescence in statements, unless they are of such character as would naturally call for a response, and unless the party sought to be charged was in such a situation that he probably would have replied to them, if untrue. (Barry v. Davis, 33 Mich 515; Churchill v. Fulliam, 8 Iowa 45; Gibney v. Marchay, 34 N. Y. 301; Slattery v. People, 76 Ill. 217; Whitney v. Hough· ton, 127 Mass. 527.)

Generally the cases in which the party is held to be affected by his silence are where statements are made concerning his own actions or liabilities. (Gibney v. Marchay, 34 N. Y. 301.)

Such statements when made by a stranger should be received and applied with caution. (Whitney v. Houghton, 127 Mass. 527.)

They could not say to the plaintiff that they had a right to continue to use the headgate in its defective condition because the Hooper Canal Company, their agent, had failed or refused to repair it. (Thompson on Neg., sec. 75; Farnham on Waters, 1598, 1984; Lisonbee v. Irrigation Co., 18 Utah 348; Thompson on Neg., sec. 7435; Durfee v. Garvey, [Cal.], 21 Pac. 302; South Bend Mfg. Co. v. Liphart [Ind.], 39 N. E. 908; Hocutt v. Railroad, 32 S. E. 681; Richardson v. Kier, 34 Cal. 63; 37 Cal. 263; Chidester v. Consolidated Ditch Co., 59 Cal. 197; Lapham v. Curtis, 5 Vt. 371, 26 Am. Dec. 310.)

Instructions should be predicated upon the pleadings and evidence in the case. An instruction which is merely a statement of an abstract principle of law, but has no application to the evidence in the case, should be refused. The reason for the rule is that instructions not applicable to the case, although abstractly correct, are apt to mislead the jury and

cause them to believe that there is some evidence tending to prove the facts referred to in the instructions, when, as a matter of fact, there is none. The giving of such an instruction is erroneous. (Sargent v. Linden Min. Co., 55 Cal. 204; Blashfield on Instructions, sec. 83, pp. 182, 201; Lacy v. Wilson, 24 Mich. 479; Comstock v. Norton, 36 Mich. 278; Le Masters v. So. Pac. Co., 131 Cal. 105.)

RESPONDENT'S POINTS.

The objection being general, this court will not consider the same unless it was incompetent, irrelevant and immaterial for every purpose. (Olsen v. Railroad, 24 Utah 460; Snowden v. Coal Co., 16 Utah 372; Culmer v. Clift, 14 Utah 291; Leedom v. Furn. Co., 12 Utah 174; In Re Van Alstine, 26 Utah 205.)

This court has found it to be error when the nisi prius court was instructing a jury where the words "reasonable degree of care" are used, not to define the same. (Dickert v. Railroad, 20 Utah 394; Downey v. Mining Co., 24 Utah 431; People v. Kerm, 8 Utah 268; People v. Biddlecome, 3 Utah 308; Bragger v. Railroad, 24 Utah 391.)

This court has laid down the rule time and time again that the entire charge must be considered together, each part as qualified by other parts, and if when so considered it is substantially correct, it is sufficient. (Olsen v. Railroad, 24 Utah 460; Anderson v. Mining Co., 16 Utah 28; Major v. Railroad, 21 Utah 21; State v. MecCoy, 15 Utah 141; People v. Chadwick, 7 Utah 141; People v. Olsen, 4 Utah 413.)

MCCARTY, C. J.

Plaintiff alleges in her complaint that she is now, and ever since the 10th day of October, 1894, has been, the owner of nineteen acres of farming land situate in Weber county, Utah; that defendants now are, and ever since a date long prior to May 20, 1903, have been, the owners of a certain irrigation ditch running along the north line of plaintiff's land through which they convey water from a certain canal to their respective farms; that about May 20, 1903, defendants, having

turned the water from said canal into said ditch, negligently permitted the same to overflow the banks of said ditch down to and upon the east half of plaintiff's land, thereby flooding out and destroying the crops growing thereon; that said overflow of water flooded and soaked a large portion of said land causing the mineral to rise to the surface thereof, and thereby making the land unfit for agricultural purposes, to plaiutiff's damage in the sum of $225. For a second cause of action plaintiff alleges that defendants in 1904 again negligently permitted the water in said ditch to overflow onto said land, thereby damaging the land and destroying the crops growing thereon, to plaintiff's damage in the sum of $675. The defendants answered and a trial was had to a jury wh returned a verdict in favor of defendants, "No cause of action." From the judgment entered on the verdict, plaintiff prosecutes this appeal.

The uncontradicted evidence shows that in the year 1903, and again in 1904, water from defendants' ditch overflowed and covered about nine acres of plaintiff's land, upon which was growing a crop of alfalfa; that the flooding of the land caused the mineral to rise to the surface, which killed and destroyed practically all of the alfalfa growing thereon. Defendants' ditch, which is known as the "Widdison ditch," extends from the Hooper canal along the north boundary lia: of the land so overflowed. The evidence introduced by plaintiff also tended to show that the overflow of water from defendants' ditch onto plaintiff's land was caused by the failure of defendants to properly clean out their ditch, and keep it in reasonably safe condition. And the evidence of both plaintiff and defendants shows that the overflow in the year 1904 was caused, partly at least, by two artificial dams which had been placed in the ditch, one of which was near the eastern boundary and the other near the western boundary line of plaintiff's land. This ditch was supplied with water from the Hooper canal and through a headgate which was under the exclusive control of the Hooper Canal Company. The evidence also shows that the headgate was poorly constructed, out of repair, and not in a condition for the proper regulation and distribu