Wooton v. Seigel

5 Colo. 424 | Colo. | 1880

Stone, J.

Nine instructions, embracing nearly as many distinct propositions of law arising upon the facts in the case, were given to the jury on behalf of the appellee. To the giving of these instructions the appellant excep'ted in the manner following, as appears by the record: “ Which instructions the court gave to the jury, to which the defendant then and there excepted.” Error is assigned upon a part only of these instructions.

This court has more than once held that an exception taken generally to instructions en masse will not be noticed by the court upon review here. Webber v. Emerson, 3 Col. 248; K. P. R. Company v. Ward, 4 Col. 30.

We are not therefore called upon to determine which, if any one, of all the instructions thus excepted to, is erroneous. The particular instruction, or portion thereof complained of, should have been clearly pointed out by the exception.

Two several instructions asked by appellant were refused by the court, and this refusal was excepted to, but the exception fails to specify whether it is founded on the refusal of the court to give each, or only one, of the two instructions prayed. The court then, of its own motion, gave an instruction on behalf of appellant which, though differing somewhat in language and form, embodies in substance botli the instructions prayed and refused, and to this instruction, so given, no exception was taken. Error is assigned upon the giving of this last instruction, but we think it cannot avail appellant to complain here for the first time of what was not excepted to in the court below; and since this instruction contained in substance the legal propositions submitted in those refused, the appellant cannot complain that he was prejudiced by such refusal.

The evidence upon the whole case, we think, clearly supports the verdict and judgment rendered in the court beloWj and the judgment is affirmed accordingly.

Judgment affirmed.