Cleveland, C., C. & St. L. Ry. Co. v. Zider

61 F. 908 | 7th Cir. | 1894

WOODS, Circuit Judge

(sifter making the foregoing statement). The objections to the instructions given cannot be considered, because the proper exception was not taken.

And under the decisions in Beaver v. Taylor, 99 U. S. 46, and Worthington v. Mason, 101 U. S. 149, the objection seems to be well made that the exception to the refusal of instructions is not available, because a series of propositions was submitted as one request, and no exception taken to the refusal of any one of them severally. According to the bill of exceptions, "each and all of the requested instructions the court refused to give, to which refusal the defendant then and there excepted.” That is to say, there was one request, one refusal, and one exception. If it was intended to save an exception to the refusal of a particular one of the 11 propositions offered, or to the refusal of each one of (hem separately and severally from the others, the bill of exceptions should have been framed accordingly.

We are of opinion, however, that there was no error in refusing any of the instructions asked. It is evident that, in instructing the jury, the court proceeded upon the assumption that the plaintiff in error had authorized the car and machine company and its employes to place unfinished cars upon its side track, and it is insisted on behalf of the defendant in error that the evidence to that effect was without conflict and clear; but in the brief for the plaintiff in error it is said “that there was evidence tending to prove the contrary, and the defendant company was at least entitled to have the question left to the jury, under such instructions as the first, fifth, and eighth, which were refused.” No reference, however, has been made in the brief or otherwise to the pages of the record where that evidence is to be found, and without such aid we are neither bound nor disposed to search for it. The party who alleges error must demonstrate it. It is insisted, however, that the court excluded testimony touching the subject, which, if admitted, would have shown that the car and machine company were entitled to use the side track of the defendant only for the purpose of delivering completed cars. The plaintiff in error, as the record shows, offered to prove by its agent Burtner “the existence of an agreement between himself, as representative of the C., O., G. & St. L. R. R. Go., and Mr. Maris, superintendent of the Litchfield Oar and Machine Company, giving that company the right to use this track as a delivery track for their cars when completed; and that such agreement did not embody the right to use the track for the purpose of constructing or completing cars thereon.” But if the agreement had been proved, as proposed, it would have presented or implied nothing inconsistent with the custom of finishing upon the track cars which had been placed there for that purpose before they were ready for delivery to the defendant, for its own use or to be transferred to other roads. " The parties were bound to act in reference to that custom, whether it originated in an agreement or grew up independently. If, therefore, the rejected evidence had been admitted, it ought not to have affected the result. It is to be observed, too, that the proffered evidence and the preliminary statements of the witness, as they appear in the record, do not show when the agreement was made, or that it was in force when the wrong complained of was committed.

The second' of the instructions requested is faulty in assuming that, under the circumstances developed in evidence, the plaintiff’s intestate should have given notice, by signal or otherwise, to the men in charge of defendant’s locomotive, of his being at work upon one of the cars on the track, when, at most, that was a question for the jury; and also in assuming that, in the absence of such notification, the defendant was under no duty to apprehend the presence of the plaintiff in the place of danger, and to avoid harming him. In view of the custom which prevailed of putting incomplete cars on the track to be finished while standing there, the jury might have considered the presence of new cars on the track as a sufficient notification during the ordinary hours of labor that workmen were probably engaged upon the cars, and were entitled to warning of any movement affecting their safety.

Objection was made to “statements made by Counsel for the plaintiff in regard to testimony claimed by counsel for the plaintiff to be in evidence;” but, while the record shows the subject, it does not show the substance or character of the statements complained of, and for that reason presents no question for our consideration.

It was not material error to refuse the request to instruct the jury that it had nothing to do with the conduct of the defendant’s engineer on any other occasion than the one in question. The jury was instructed with sufficient dearness that, in order to he entitled Jo recover, the plaintiff must have proved the defendant guilty of the wrongful acts of negligence or default set forth in the declaration, and it is not to he supposed that in that respect the jury could have misapprehended the issue.

By adducing testimony in its own behalf, the plaintiff in error 'waived its exception to the overruling of its motion that the evidence adduced in behalf of the plaintiff in the action be withdrawn from the jury, and a verdict directed in behalf of the defendant.

The judgment below is affirmed.