¶1I dissent. The question assumed that there were differences between the affidavit and the answers of the witness, and as the affidavit is not, and could not be, before the court, there was ño ground for the assumption, and the question was properly excluded. As to the charge, there is no exception raising the question as to the correctness of the charge, and no attempt was made to call the judge’s attention to what is now claimed to have been error.
¶2(concurring specially.) I think it was error to admit the contracts between Zuckerman and the Missouri Railroad Company in evidence over plaintiffs’ objection and exception. The injury thus done was accentuated in the charge, wherein these contracts were referred to as a circumstance militating against plaintiffs’ claim. Although no exception was taken to this part of the charge, the exception to their original introduction was good, and should be sustained. Upon this ground I concur in the result reached by Mr. Justice BARRETT.