and could not have been, misled by.the latitude given by·theiMurt in the admission of testimony. .It is argued that the weight of the evidence upon the question as to the priority of the respective locations is in favor of the Last Chance, and the remarks of the court in overruling a motion for a new trial are referred to as tending to sustain this argUment. This question cannot be reviewed by this court. It is well settled that the overruling of a motion for a new trial is not a subject of exception under the practice established in the United States courts. We are, in, our investigations, confined to the consideration of exceptions, taken at the trial, to the admission or rejection 6f evidence, and to· the charge of the court and it'S refusal to charge. We have no concern with questions of fact, or of the weight to: be given to the evi,dence which was properly admitted at the triaL Railroad Co. v. Charless, 2 C. O. A. 380, ,51 Fed. 579, and· authorities there cited. , The: views we have expressed, takenin connection with the former opinion of this court, dispose: ofall the assignments of error properly presented by the recordinAhis 'case. The judgment of the circuit court i8 affirmed, with ,costs.
GRIFJj"INv, OVERMAN WHEEL CO. (CIrcuit Court of AppealS, First Circuit. April 5, 1894.)
QUES'J'()N FOR REV(EW ON ApPEA(.,.
record recited thatatthe conClusion of plaintiff's evidence de(endant asked the court to rule that there was no evidence that deceased was in the exercise of due care, and that the court so ruled, and thereupon ordered plaintiff excepted. a verdietfor defendalilt, to which ruling ll,nd Odd" t4at the question for review was restricted to tbe precise proposition . stated,namely, whether'there was evidence to go to the jury that deceased was in the exerCise of dUe care.
The practice in the federal. courts is thorougbly settled tbat wben one party makes 8 motion, or interposes an objection, on grounds specifically stated, he cannot, at a SUbsequent stage of the case, shift or enlarge his position, Unless perhaps When it clearly appears that by so doing no detriment cou,ld come to. the other party. 8. DEATH BVWR0:liGFUJ< AOT - CONTlUBUTORY NEGLIGENOE - QUESTION FOR
PRACTICE":""OBJECTIONS INTERPOSED CANNOT BE ENLARGED TO DETRIMENT OF OTHER PAR'l'Y. .
In an action under the employers' liability act of Massachusetts (Acts 1887, c. 270) for the death of a night watchman, wIio was found dead on the ground near a narrow. unralled bridge running between two buildings, over which J1e customarjly passed in his rounds, the jury are entitled to determine,by inference trom the facti;l proyed, the question whether be was in thel!x,erclse of due care, although, from the nature of the case, there could be no positive proof on the subject. In such, the federal courts should apply their own rule, that contributog.negllgence Is a matter of and they are not bound by tbe MassaChusetts decisions to the contrary. Per J.
4. SAME-CONTRIBUTORY NEGLIGENCE:......BuRDEN OF PROOF.
In Error to theOircuit Oourt of the United··States for the District of Massachusetts.
GRIFFIN ". OVERMAN· WHEEL -CO.
This. was' an 'action by Mary Grifllil against·'the Overman Wheel Company -to recover damages for the death of her husband, John Griffin. At the close ofplaintiff's evidence the circuit court directed a verdict for defendant, which was done, and judgment entered accordingly. Plaintiff brings the case to this court on writ of error.
The action is founded on chapter 270 of the Acts of 1887, Acts and Resolves of Massachusetts, passed May 14, 1887, and the declaration is in three counts, under clause 1 of section 1 of said act, which is as follows: "Where, after the passage of this act, personal injury is caused to an employee, who is himself in the exercise of due care and diligence at the time: By reason of any defect in the condition of the ways, works, or machinery connected with or used in the business of the employer which arose from or had not been discovered or remedied owing to the negligence of the employer or of any person in the service of the employer, and intrusted by him with the duty of seeing that the ways, works, or machinery were in proper condition; * * * the employee, or, in case tlle injury results in death, the legal representatives of such employee, shall have the same right of compensation and remedies against the employer as if the employee had not been an employee of nor in the service of the employer, nor engaged in its work." John Griffin was a night watchman at the defendant's factory, in Chicopee Falls, having entered its employ in February, 1891. It was his duty, as such, to make the rounds of a certain number of the defendant'!; buildings once every hour during the night, and to punch several buttons which were connected by electrical appliances with a watchman's clock or dial in the defendant's office, upon which a mark was registered every time a button was punched. Griffin had 17 of these buttons to punch, numbered consecutively from 31 to 47, inclusive. The route which Griffin followed in punching these buttons was as follows: He started in the engine room, so called, of mill No.2. There he punched button No. 31; went from there to the basement of mill No.2, where he punched button No. 32; from there to the front of the basement, and button No. 33; thence to the front of the second story, and button No. 34; thence to the center of the second story, and button No. 35; thence to the second story of the rubBer mill, so called, a bUilding about 15 feet north of mill No.2, and connected with mill NO.2 by a bridge about 4% feet wide and 15 feet from the ground. In this second story of the rubber mill, button No. 36 was located. On the night of the accident he was seen to start on his round at 1:30 o'clock a. m., puncblng button No. 31 in the engine room. He was not seen again until he was found, about two hours afterwards, lying on his back, on the ground, dead, between the rubber mill and mill No.2. east of the bridge, with his head towards mill No.2 and his feet .towards the rubber mill,and his lantern by his side, crushed so that the oil ran out of it. There' was a cut about two inches long upon the back of his head, in which there was sand .and gravel; and his skull was fractured. The watchman's clock or dial in the office showed that on the 1:30 o'clock trip buttons ]l;"os. 31, 32,33,34, and 35 had been punched, and button No. 36 had not. The bridge had been completed about four weeks before the night of Griffin's death, and since that time it had been his custom, in making his rounds, to go from mill No.2 to the rubber mill by way of the bridge. That was the direct and natural route, and the one which he always took, so far as the evidence showed. The buttons had been located with a view to his using the bridge in going from mill No.2 to the rubber room. The electrician who put in the wires and buttons had been instructed to cover the most ground with the least number of buttons. If Griffin went from mill No. 2 to the rubber mill by any other route, he would have had to retrace his steps from the second story of mill No. 2 to the starting point, and would thus be put a great deal out of his way. The electrician had, by order of the defendant's superintendent, changed Griffin's route after the buttons were put in, and gave him instructions as to the route he was to follow in punching the buttons; telling him to punch the button in the enameling room (No. 35), and then to "punch the one in the rubber mill over the bridge" (No. 36). The bridge in question sloped somewhat from mill No.2 to the rubber mill. It was in evidence that the night on which Griffin met his death was cold,
FEDERAL REPORTER. vol.
condltfon. on of the _About a' week engine had been in the mabefofe the night of Grl,tli'd'if death a .2, frQm whiCh there was an exchine room on the ground floor' of mill: haust pipe, which came out of the ground :floor of the mill, through the window of the basement,awut 16 inches from the ground, and about 18 inches west of the. bridge, and extended about 18 inches beyond the window. On the night In (,tuestion the wind was blowing from the northWest, and the steam completely the a space about eight ft;!etjlquare, so that, according to ()Jle Witness, "it was pretty hard work for a. man' togo over that bridge that night with a lantern to find his way." Itwa.sinevidence that the bridge had never been known to be in such a con· ditiollas1to'steam and slipperiness before. There was me<lical testimony that atalilfrom the bridge would account for the marks of injury on Griffin, and for his death. At the¢Qnclusion of the'pIaintlff's testimony the defendant asked the court to role lhatthere evidence that Griffin was in the (jf due care. The court· sorule(l, and the plaintiff excepted, and suedOiita writ of el'l'Or to this· court.;'Plaintlff assigns for error that the court erred in ruling that there was no evidence that Griffin was in the exercise of dWl care. ' , '
anc'lfrplpt.Y, and that· the '-l>ridgew.as In
JameS B.Carroll and James E. Cotter"for plaintiff in error.
The butd.en of. establishilllfa1fil'inatively freedom f roIll contributory negligence maybe successfully borne thouiJl:i there were no eyewitnesses of the and manner of occurrence are accident, and even unknown. . It, in such a (,'8.se, the' sU11;ounding facts and circumstances reasonably indicate. or tend that the accident Diight have occurred without negllgence of the deceased, tha1 inference becomes possible, in ad· dition to that 'which involVeS a careleSS or wlllfuI disregard of personal question of.' fact may arise to be solved by a jury, and resafety, and quire a choice betweenpossi1;lle but divergent inferences. Finch, J., In ToJman v. Ra1lroad Co., 98 Y: 198-208. .
Luther White and Edward S. White, for defendant in error. Before.:PUTNAM, Circuit Judge, and NELSON and WEBB, District .Judges.
PUTNAM, Circuit Judge. When the defendant in the court below movedtbat a verdict be directed in its favor, it was put in the following form, as appears by the record:
"The defeulll1nt o1l'ered nO and at the conclusion of the plaintiff's testimony asked the court to role that there was DO evidence that the sald John Gtl1fin was In the eXercise of due care."
John Griffin was the person on account of whose death the action ,was commenced. The then proceeds:
"The judge so ruled. and prdeJ,'ed a verdict for the defendant, and thereupon a verdict was. so returned; to which ruling and order the plaintiff excepts, and she prays that her exceptions·may be
By the forin of the. defendant's request for ruling it liIllited itself, for all the purposes of this appeal, to the precise proposition stated by it. The practice in the federal courts is thoroughly settled that when 0lleparty makes a motion, or interposes an objection, on grounds stated,lle cannot, at a subsequent stage of the case, shift his position, unless perhaps when it clearly appears that b;r lK) doing no detriment could come to the other party. Therefore thli'party so moving or objecting is ordinarily required to put his on the very pith and marrow of what he claims, and
GRIFFIN'll. OVERMAN WHEEL CO.
is ordinarily held to waive everything except wliat is so pointed out. Non c()nstat, that if the defendant had expressed its motion generally, or if it had been expressed specifically with other reasons than those which were stated, the plaintiff might, with the leave of court, which is always easily obtained, have supplied any other deficiency. For this reason the only question before this court is whether the record shows there was evidence to go to the jury that Griffin was in the exercise of due care in connection with the injury which occurred to him. It was suggested at the argument of the case that, even under the employers' liability act of Massachusetts, on which statute plaintiff relies, the federal courts will apply their general rule that the want of due care on the part of the plaintiff, in a case of an injury happening through negligence, is a matter of defense, and that the plaintiff is not ordinarily required, in the first place, to give evidence touching it. That question was not raised in the circuit court, and has not been brought before us in such form as renders us desirous of disposing of it, and we are not required to do so in the present case. We do not deem it necessarY to set out the evidence in the court below, or to analyze it in this opinion, and we consider it sufficient to say that the case falls within the practical application of the rules touching due care, and of the inferences to be drawn from the facts proven, which are accepted and approved in Maguire v. Railroad Co., 146 Mass. 379, 382, 15 N. E. 904; Thyng v. Railroad Co., 156 Mass. 13, 16, 30 N. E. 169; and Maher v. Railroad Co., 158 Mass. 36, 44, 32 N. E. 950. We do not intend to suggest whether the propositions covered by these cases, and which we apply to the case at bar, are or not mere rules of evidence as to which we are bound by the decisions of the highest court of the state of Massachusetts, because, whether we are bound by them or not, they meet our approval, which is sufficient at present. We will only add that the circumstances of the various cases which we cite, as well as those of that at bar, essentially distinguish them from cases like that of the approach of a traveler to a railroad crossing, where, ordinarily, it is necessary to show the performance of some positive duty on the part of the person injured in order make out due care. Judgment of the circuit ccmrt reversed, and case remanded for further proceedings. NELSON, District Judge, concurs in this opinion. WEBB, District Judge (concurring). This case depends on the correctness of the ruling of the circuit court ordering a verdict for the defendant. As stated in the plaintiff's bill of exceptions:
"The defendant offered no testimony, and at the conclusion of the plaintiff's testimony asked the court to rule 'that there was no evidence that the said John Griffin was In the exercise of due care.' The judge so ruled, nnd ordered a verdict for the defendant, and thereupon a verdict was so rendered; to which ruling and order the plaintiff excepts, and prays that her exceptions may be allowed." ·
, J'EDER.Ui REPORTER,
is this ruling and order of a verdict. .It is obvions that there is involved in this case thus presented a question, of law as well as one of fact. If, in fact, the plaintiff had offered no evidence proper to go to the jury upon the due care and diligence of John Griffin, was the ruling correct? Contributory negligence on the pan of a person injured is always fatal to his maintainingan action fQr the recovery of damages on account of the negligence ot a defendant. There is, however, great con1lict of courts in respect to the party upon whom the burden of proof rests. Many cQurts hold the plaintiff bound to prove affirmatively that he was in the, exercise of proper care, and that no negligence on his part contribnteclto the injury;. others; maintain the rule that 'contributory on the part of the person injured is matter of defense, and must be proved by the whole evidence, irrespective of the side by which it 18 produced. In the courts of the United States the rule negligence is a matter of defense is firmly settled. v. Gladmon, ,15 Wall. 401; Railroad Co. v. Horst) 98 U. S. 291; l;I;ough v. Raj}way Co.,100 U. S. 213, 225; Railroad Co. v. Mares, 123 U. S. 710, 720, 721, 8 Sup. Ct. 321; Coasting Co. v. Tolson, 139 U. 13,.51>1,557, 11 Sup. Ct. 653; Railway Co. v. Yolk, 151 U. S. 73, 77, 14 Sup.Ct.. 239. The contrary rule prevails in the courts of Massain which state:thiscase arose. This, however, is not a mattel'· the federal ,tourts, are bound to follow the state decisions. But it is said this arises under a state statute, and that the interpretation of that statute by the state court must be followed. Thai statq.te,is, so far as the present inquiry is concerned, as follows:
"Where, after the passage of this act, personal injury is cl;tused to an employee, is himself:in the exercise of due diligence at the time: Byreason of any. defellt. in the ways, works or. machinery, connected· with or used in the business of the which arose from or had not beE\ln discovered or relneClieq owing to the J:j.'egligence of the employer 61' of any person in the service of the employer, and entrusted by him with the duty'9f seeing that the waYEl, works or machin.ery, were in proper condition; * * * the employee, or in cll-se the results in death, the legal representatives of such employee, shall have th.e same right of compensation and remedies against the employer as if the employee had notbel;!n an employee of nor in the service of theelnployer, nOr engaged in its work."
purpose and intention of this legislation were to place servants and employes on the same footing with, and to give them the Same in, respect to injuries caused by the negligence of their employers that persons not employes or servants bad. The statute removed, or was designed to remove, some of the preexisting limitations upon .the remedy of an employe against his employer. Ryalls v. Mechanics' Mills, 150 Mass. 190, 22 N. E. 766. The words, "who ,is himself in the exercise of due care and diligence at the time," introduce no new limitation or restriction of the right to recover. They leave him just where other persons stand. If they were not found in the statute, there can be no doubt that every court would imply them. The implication would be compelled by' the terms of the act that "sllchemployee' shall have the same right of compensation and remedies.against the employer as if the employed had not been an employee of nor in the service of the employer, nOl'
UNION PAC. RY. CO. V. NOVAK.
engaged in its work." This "same right" was a right to compensation and remedy for injury caused by the negligence of another, subject to be defeated if the injured person's own negligence contributed to produce the injury. Since the passage of this act in 1887 numerous suits under it have been brought in the courts of the state. T 00 not find that in any of them the question of the effect of the words, "who is himself in the exercise of due care and diligence at the time," has challenged the consideration and interpretation of the conrt. The course of procedure, and the rule as to the burden of proof, prevailing in those courts in actions at common law have been followed without discussion or hesitation, as was to be expected. This court therefore is not embarrassed or controlled in the construction of the statute by any decision of the state court, and should, in view of the purpose of'the act, give a construction consistent with its own rule that contributory negligence is matter of defense. Under such construction it follows that the court below erred in ordering a verdict for the defendant, and the cause should be remanded and a new tI'ial had. In view of the practical importance of the legal question, affording, as it does, a rule applicable to all cases that may come before this court under the employers' liability act of Massachusetts, it ought to be considered and determined, and, if found favorable to the plaintiff, the decision of this case should be based on it, rather than on the question whether any evidence was produced at the trial which could and ought to have been submitted to the jury. But, while thus giving precedence to the point of law, I do not differ from other membersof the court in the view that there was evidence as to the care and diligence of Griffin that should have been passed upon by the jury.
UNION PAO. RY. 00. v. NOVAK. (Circuit Court of Appeals, Ninth Circuit. No. 114.
SERVICE OF PROCESS-!UREGULARITIES.
April 2, 1894.)
.A. marshal returned that he had made personal service on the agent of a foreign corporation, but he had in fact left the summons with a person in charge of the agent's office, who handed it to the agent on the following day. On the latter day the agent verbally admitted service, in a conversation with the marshal. Held, that the service, though irregular, was not illegal, and should not be set aside on motion. .A. person served as ticket agent of a railroad company made affidavit that he was not an agent of the railroad company, but was an agent of a union-depot company, and, as such, sold such tickets as the depot company furnished him. Held, that the reasonable inference was that, if the depot company gave him tickets of the railroad company, he would sell them; and, in the absence of a clearer statement of his position and' duties, it was not error to hold that he was a ticket agent of the railroad company, upon whom service might be made. by hand brakes, only, the speed of a gravel train, consisting of a number
SERVICE ON AGENT OF CORPORATION-AFFIDAVIT AS TO AGENCY·
EXPERT EVIDENCE-WHEN ADMISSIlH,E-QUALIFICATION OF EXPERT.
The question whether one brakeman was sufficient to check or control