(after stating the facts as above).
Errоr is assigned to the refusal of the court to direct a verdict in favor of the defendants. The motion was based on the grounds: That the plaintiff had failed to establish that both the defendants were engaged in the business of a common carrier; thаt he failed to establish that he was employed or working for the Katalla Company; that the evidence provеd his contributory negligence; and that there was no evidence to make out a case against the defendants. The argument made in support of this assignment of error presents grounds in addition to those which were expressed in the motiоn for a directed verdict, and it is said that a joint action against the two corporations cannot be maintained; that the action must be based either on the Employers’ Liability Act (45 U.S.C.A. § 51 et seq.) or on the common law, and not on both, and that if the act applies to either defendant as a common carrier, it supersedes all common law and statutory liability on its part. It is true that the act of Congress supersedes state and territorial laws “in the matter with which it deals.” Francis v. McNeal,
While neither the complaint nor the answers alleged that eithеr of the corporations was a common carrier, the complaint alleged that the Copper River Cоmpany was operating a line of railroad, and that the Katalla Company - was a subsidiary company of the Cоpper River Company, and that the latter in operating its road did so partly through the Katalla Company as its agent. The testimony established these allegations. It was proven that the Copper River Company was at the time of the accident a common carrier. It was also shown that the Katalla Company transacted the business of the road, issued in its own name
But if it had been true, as contended by the defendants, that misjoinder wаs disclosed by the plaintiff’s evidence, that fact, it is clear, would not entitle the defendants to a directed verdict in thеir favor. Their remedy was to move the court at the conclusion of the testimony to require the plaintiff to elect as against which of the defendants he would proceed. 21 Cyc. 653; French v. Central Construction Co.,
As to the other grounds of the motion, it was shown that the plaintiff was paid by the checks of the Katalla Company, and upon the case made by the plaintiff there was evidence to go to the jury tending to prove the negligence of the defendant in not prоperly lighting the dangerous opening in the platform, or in failing to guard
We are precluded from considering the assignments df error which are bаsed upon instructions to the jury and refusals to instruct, for the reason that it does not appear that timely exceptions were taken to the instructions so given or denied. On May 10, 1913, two days after the jury had returned their verdict, the plaintiffs in error filеd in the court below a paper containing their exceptions to the court’s instructions and refusals to instruct; and it dоes not appear in the bill of exceptions that prior to that date, or at-any time during the trial, any such exceptions were taken. It seems unnecessary to cite authorities to the proposition that exceptions to the charge taken after the jury had brought in a verdict are of no avail in an appellate court. Reference may be made to Western Union Telegraph Co. v. Baker,
The judgment is affirmed.