McCORMICK, Circuit Judge.
Reducing the assignment of errors in this case to its due proportions, excluding repetitions and argument, it appears that the plaintiff in error contends that the trial court erred (1) in refusing to direct a verdict for the defendant; (2) in failing to instruct the jury as to the measure of damages; (3) in refusing to instruct the jury in the very words that it is the duty of a traveler to stop and look and listen, etc., before attempting to cross a railroad track; (4) in refusing to charge the jury that the right of the railroad company on every part of its track is superior to that of the public.
Five of the repetitions of the first assignment of error are in express terms based on the defendant’s view of what “a fair preponderance of the evidence showed.” It can hardly be made clearer that the case was not one to be withdrawn from the jury. The defendant did not submit a proper charge on the measure of damages. The plaintiff had lost his leg; had been two months in the hospital; had required and received medical, surgical, and other attention proved to be of the value of $700. He was 35 years old; a man of sound and vigorous health up to the injury; earning $65 a month, besides board and washing, the year round. After the injury he could go only on crutches; could not earn any wages in the calling he had followed for the next preceding 11 years. He claimed only $10,000 damages. The court might safely trust the average jury to measure the damages. The settled rule is that the party cannot complain of such omission when he omitted to propose and request a proper charge. If the defendant had suffered injury from the want of such a charge,—which it has not,—it would be barred of redress by its contributory negligence. As to the third ground of error in our redaction of the assignment we are of *73opinion that the charge of the court on that subject was correct and sufficient. It was therefore right to refuse the requested charge. “A judge is not bound to charge upon assumed facto in the ipoissima verba of counsel, nor to give categorical answers to a judicial catechism based, on such, assumption. Such a course would, often mislead the jury instead of enlightening them, and is calculated rather to involve the case in the meshes of technicality than to promote the ends of law and justice. It belongs to the judicial office to exercise discretion as to the style and form, in which to expound the law and comment upon the facts: and if a judge states the law incorrectly, or refuses to state it at all, on a point material to the issue, the party aggrieved will be entitled to a new trial. But when he explains the whole law applicable to the case in hand, as we think was done in this case, he cannot be called upon to express it in the categorical form, based, upon assumed facts, which counsel choose to present to him.” Improvement Co. v. Stead, 95 U.S. 161" court="SCOTUS" date_filed="1877-11-12" href="https://app.midpage.ai/document/continental-improvement-co-v-stead-89574?utm_source=webapp" opinion_id="89574">95 U. S. 161. The fourth ground of error assigned Is not well taken. The refused charge was in these words: “You are instructed that the rights of the railway company and of the public are not equal, but that the right of the company is superior to the right of the traveling public on all parts of its track, even at crossings.” Tf we concede that, as an abstract proposition, the language of this request is technically correct, still, standing alone, as a requested charge,, it is defective and misleading; for the people have the same right to travel on public streets and ordinary highways that railway companies have to run trains on their railroad tracks. The judgment of the circuit court is affirmed.