No. 1,308 | 8th Cir. | Apr 4, 1901
This action was brought by Albert Martin and others, heirs at law of Mary E. Martin, against Edward C. Baggs, as receiver of the Denver City Railroad Company, to recover damages for the killing of Alary E. Martin through the alleged negligent management of the street cars operated by the defendant. There was a trial to a jury, and a verdict and judgment for the plaintiffs, and the defendant sued out this writ of error.
The first three errors assigned relate to instructions given -and refused. But these alleged errors cannot be considered, because no sufficient exception was taken to the instructions given, or to the refusal to give those asked by the defendant. To a series of instructions, embracing several separate and distinct propositions, asked by fhe plaintiff and given by the court, only one of which is assigned for error or claimed to be erroneous, the only exception taken was: “To the giving of the instructions asked by the “plaintiffs, and to each and every thereof, defendant then and there duly excepted.” To a series of instructions, embracing nine separate and distinct propositions, asked by the defendant and refused by the court, the only exception taken was in these words: “To the refusing of which instructions defendant by his counsel duly excepted.” These exceptions were not sufficient, for reasons so often stated by this and other ■courts as not to require repetition. Railway Co. v. Jurey, 111 U.S. 584" court="SCOTUS" date_filed="1884-05-05" href="https://app.midpage.ai/document/mobile--montgomery-railway-co-v-jurey-91144?utm_source=webapp" opinion_id="91144">111 U. S. 584, 596, 4 Sup. Ct. 566, 28 L. Ed. 527" court="SCOTUS" date_filed="1884-05-05" href="https://app.midpage.ai/document/mobile--montgomery-railway-co-v-jurey-91144?utm_source=webapp" opinion_id="91144">28 L. Ed. 527; Price v. Pankhurst, 10 U. S. App. 497, 499, 3 C. C. A. 55, 53 F. 312" court="8th Cir." date_filed="1892-11-14" href="https://app.midpage.ai/document/price-v-pankhurst-8845534?utm_source=webapp" opinion_id="8845534">53 Fed. 312; Association v. Lyman, 18 U. S. App. 507, 9 C.C.A. 104" court="7th Cir." date_filed="1894-02-09" href="https://app.midpage.ai/document/masonic-ben-assn-v-lyman-8849030?utm_source=webapp" opinion_id="8849030">9 C. C. A. 104, 60 Fed. 498. In the last case cited, an exception in this form, “To the giving of each and all of which instructions the defendant, by its counsel, then and there excepted,” was held to be of no avail. Anthony v. Railroad Co., 132 U. S. 173, 10 Sup. Ct. 53, 33 L. Ed. 301" court="SCOTUS" date_filed="1889-11-18" href="https://app.midpage.ai/document/glenn-v-sumner-92580?utm_source=webapp" opinion_id="92580">33 L. Ed. 301; Railway Co. v. Johnson, 4 C.C.A. 447" court="8th Cir." date_filed="1893-01-27" href="https://app.midpage.ai/document/gulf-c--s-f-ry-co-v-johnson-8846099?utm_source=webapp" opinion_id="8846099">4 C. C. A. 447, 54 F. 481" court="8th Cir." date_filed="1893-01-27" href="https://app.midpage.ai/document/gulf-c--s-f-ry-co-v-ellis-8846100?utm_source=webapp" opinion_id="8846100">54 Fed. 481, 10 U. S. App. 629; Philip Schneider Brewing Co. v. American Ice-Mach. Co., 23 C.C.A. 89" court="8th Cir." date_filed="1896-10-12" href="https://app.midpage.ai/document/philip-schneider-brewing-co-v-american-ice-mach-co-8856892?utm_source=webapp" opinion_id="8856892">23 C. C. A. 89, 77 Fed. 147, 40 U. S. App. 382; Shelp v. U. S., 26 C.C.A. 570" court="9th Cir." date_filed="1897-06-07" href="https://app.midpage.ai/document/shelp-v-united-states-6567089?utm_source=webapp" opinion_id="6567089">26 C. C. A. 570, 81 Fed. 700, 48 U. S. App. 385; Holder v. U. S., 150 U.S. 91" court="SCOTUS" date_filed="1893-10-30" href="https://app.midpage.ai/document/holder-v-united-states-93684?utm_source=webapp" opinion_id="93684">150 U. S. 91, 14 Sup. Ct. 10, 37 L. Ed. 1010" court="SCOTUS" date_filed="1893-11-06" href="https://app.midpage.ai/document/brown-v-united-states-93685?utm_source=webapp" opinion_id="93685">37 L. Ed. 1010; Lewis v. U. S., 146 U.S. 370" court="SCOTUS" date_filed="1892-12-05" href="https://app.midpage.ai/document/lewis-v-united-states-93448?utm_source=webapp" opinion_id="93448">146 U. S. 370, 13 Sup. Ct. 136, 36 L. Ed. 1011" court="SCOTUS" date_filed="1892-12-05" href="https://app.midpage.ai/document/lewis-v-united-states-93448?utm_source=webapp" opinion_id="93448">36 L. Ed. 1011; Iron Co. v. Blake, 144 U.S. 476" court="SCOTUS" date_filed="1892-04-11" href="https://app.midpage.ai/document/chateaugay-ore--iron-co-v-blake-93334?utm_source=webapp" opinion_id="93334">144 U. S. 476, 12 Sup. Ct. 731, 36 L. Ed. 510" court="SCOTUS" date_filed="1892-04-11" href="https://app.midpage.ai/document/chateaugay-ore--iron-co-v-blake-93334?utm_source=webapp" opinion_id="93334">36 L. Ed. 510.
The clothing Mrs. Martin had on when she received the injury which resulted in her death was exhibited to the jury for the purpose of identifying her as the woman who received the injury, and as tending to prove the character and extent of her injuries. There was no error in this. The defendant denied that the deceased was a passenger on his car, or.that she received any injury through the negligence of himself or his servants.
The remaining assignment of error relates to a remark of the plaintiff’s counsel in his argument to the jury. This assignment of error is not supported by a reference to the record showing that an exception was- taken to the remark when made, and what action the court took thereon. Under the rules of this court, such a reference is necessary. The only reference to the record in the brief of counsel for the plaintiff in error is to, page 101, and upon turning to that page we find the alleged remark is set out as one of the grounds for a new trial, and we do not find it referred to elsewhere in the record.