delivered the opinion of the court.
*6443. Railroads, § 352 * —when instruction in action for damages for overflowing of land caused by embankment is not erroneous. In an action for damages for overflowing of lands claimed to have been due to a railroad embankment, where an instruction was given to the effect that if the jury believe from the evidence that tho plaintiff’s lands had, prior to the construction of said embankment by the defendant, been subject to overflow and the crops of plaintiff to have been injured and destroyed in the same manner and to as great an extent before as after the construction of said embankment, they should find the defendant not guilty, held said instruction was faulty in form but there was no error in giving same, as if the jury found from the evidence the matters stated in said instruction it would have been their duty to have found the defendant not guilty.
4. Appeal and error, § 1552*—when giving of ambiguous instruction is harmless error. Where an instruction is not clear in its statements and its meaning is somewhat ambiguous, but no particular error therein is' pointed out by counsel whereby such instruction could have injured the party against whom the verdict was rendered, and under the evidence the jury could not have been misled thereby to such party’s hurt, the giving of such an instruction is not ground for reversal.
5. Instructions, § 63*—when not erroneous as assuming facts. The giving of an instruction on behalf of a defendant to the effdct that the defendant was a railroad corporation and as such had the right and legal authority to construct its railroad across the land's of the plaintiff was not erroneous as assuming facts, where the plaintiff himself had testified that he had sold the right of way to the defendant for railway purposes.
6. Railroads, § 352*—when instruction as to nonliability of for overflow due to construction of embankment over stream is not seriously erroneous. An instruction given on behalf of a railroad company sued for damages for overflowing of the plaintiff’s lands, stating that “in the construction, operation and maintenance of its railway and embankments it is not a guarantor that its railway and embankments will be so constructed as to carry off or permit the carrying off of all the surface waters which might occur at times of such extraordinary and exceptional rainfall as,has never occurred before, or such extraordinary or exceptional rainfalls which, though they have occurred, may not reasonably be expected to recur,”" held not seriously erroneous.
7. Appeal and error, § 1752*—when judgment affirmed because of defective abstract. Where an abstract is tendered on an appeal *645which, wholly fails to comply with the rules laid down by the Appellate Court covering the preparation of abstracts, as when it fails to abstract the pleadings or refer to the same, and the index refers to the record alone and not to the abstract, affirmance of the judgment without consideration of the case on its merits is warranted.
8. Appeal and ebbob, § 1712 * —what errors are waived. Errors assigned but not argued are taken as waived under the rules of court.