(dissenting). I am unable to agree with the disposition made of this case or the grounds on which the majority members base their decision. This case was one properly triable to a jury. It was so tried. This court reviews only the errors assigned upon the proceedings had in the trial court. N. D. Const. § 86; Thompson v. Cunningham, 6 N. D. 430, 71 N. W. 128; State v. Knudson, 21 N. D. 562, 132 N. W. 149; Erickson v. Wiper, 33 N. D. 193, 225, *96157 N. W. 592. And the appellant bas tbe burden of proving error, and must present a record affirmatively showing it. Erickson v. Wiper, supra.
In this case there was no motion for a directed verdict and no motion for a new trial and the sufficiency of the evidence was not challenged at all in the trial court. This court has ruled that in such case the sufficiency of the evidence cannot be questioned in this court. See, Horton v. Wright, Barrett & Stilwell Co. 13 N. D. 114, 174 N. W. 67, and authorities cited therein.
I believe, however, that the trial court erred in its instructions to the jury. The court instructed the jury: “There is no direct evidence that they (the hogs) were sick of hog cholera, or were not in a healthy condition> and it is for you to determine whether they died of poison if poison' was administered to them, or whether they died of some other disease.” Error is assigned on this instruction. And in my opinion the assignment is well founded. There was a square conflict in the evidence as to the condition of the hogs.. The plaintiff testified that at the time the defendant brought the medicine, all the hogs belonging to plaintiff, which later died, were well. Defendant on the other hand testified positively that the hogs which later died were all very ill at the time he delivered the medicine to the plaintiff. In my opinion the judgment should be reversed and a' new trial ordered.
Birdzell, Ch. J., concurs.