Royce v. Delaware, L. & W. R. Co.

203 F. 467 | 2d Cir. | 1913

LACOMBE, Circuit Judge.

The question of negligence on the part of defendant was submitted, to the jury. The charge was clear, careful, and accurate. It called attention to the circumstance that the master had been informed of the accident -to the engine, just what it was — that the top guide was lost — and that whether or not the defendant was negligent depended upon the question whether a person of reasonable prudence would have done* more than the master did, viz., inform the conductor that they would send the pusher, which was in fact sent. The court told the jury that the question was: Did the train dispatcher, who for the purpose of the case was the superintendent, perform his full duty in merely sending the pusher? that it was for them to say whether he should have done something more. He further told them that, if the superintendent or dispatcher turned the matter over to the conductor to do as he thought best, he delegated! his own authority on the matter to the conductor, and if the latter did not exercise due care the plaintiff could recover.

[1,2] There was no exception to this charge by the plaintiff; indeed, it is difficult to see how there could be. It charged the law of the case correctly and favorably for him. There was no request for any further instruction, no request for a charge that there was no conflict of testimony on this branch of the case, or that negligence had been proved as a matter of law. There was no objection made to sending the cause to the jury on the question whether or not the defendant exercised due care. The contention now made really is that the verdict was against the weight of evidence; but there is no exception which brings any such question here. Plaintiff moved to set aside the yerdict and for a new trial and took an exception to the denial of that motion, but no such exception comes to a federal court of appeal on a writ of error.

There are exceptions to admission or exclusion of testimony — all • bearing on the question whether under the rules of the road plaintiff, at the time he was injured, should have been in the engine cab, or on top of the cars. These need not he cónsidered, because the court, by the charge, eliminated all question as to whether plaintiff was or was not where he ought to have been. He charged that, even though plaintiff was not at his place of duty, nevertheless, if he had done nothing that contributed to the happening of the accident, he would be entitled to recover. And he charged, further, that his presence in the cab did not contribute at all to the happening of the accident to the engine, which caused his injuries.

The judgment is affirmed.