American Smelting & Refining Co. v. Karapa
| Decision Date | 28 October 1909 |
| Docket Number | 2,981. |
| Parties | AMERICAN SMELTING & REFINING CO. v. KARAPA. |
| Court | U.S. Court of Appeals — Eighth Circuit |
William B. Vates, for plaintiff in error.
M. J Galligan, for defendant in error.
Before SANBORN and VAN DEVANTER, Circuit Judges, and WILLIAM H MUNGER, District Judge.
The plaintiff in error complains of a judgment against it for damages alleged to have been inflicted upon the defendant in error, one of its servants, by its failure to exercise reasonable care to guard a narrow pathway upon which its employe was placed at work. The complaint set forth in detail the character of the place, the nature of the negligence, and the alleged fact that the defendant in error was caused thereby seriously injured. The plaintiff in error, by its answer, denied these averments, and alleged that the injuries of its servant were caused by his contributory negligence and that he had assumed the risk of working in the place from which he fell. To this answer the defendant in error interposed a reply, wherein he denied each and every allegation contained in the answer. Two of the specifications of error are that this reply was insufficient; but it fairly met the issues it was interposed to present, and these specifications cannot be sustained. A general denial in a reply of allegations in an answer of the plaintiff's contributory negligence and of his assumption of the risk is sufficient.
There is a complaint that the court overruled the motion of the Smelting Company, made at the close of the case of the defendant in error, that the court should direct a verdict in its favor on the ground that the evidence was insufficient to sustain any other conclusion. But the company subsequently introduced evidence upon the merits of the issues in the case, and a defendant in a trial waives his demurrer to the plaintiff's evidence by the subsequent introduction of evidence to the merits in his own behalf. Insurance Company v. Crandal, 120 U.S. 527, 530, 7 Sup.Ct. 685, 30 L.Ed. 740; Railroad Company v. Mares, 123 U.S. 710 8 Sup.Ct. 321, 31 L.Ed. 296; United States Fidelity & G. Co. v. Board of Com'rs, 145 F. 144, 150, 76 C.C.A. 114, 120; Barnard v. Randle, 110 F. 906, 907, 49 C.C.A. 177, 178; Insurance Company v. Frederick, 58 F. 144, 147, 148, 7 C.C.A. 95; Jefferson v. Burhans, 85 F. 924, 927, 29 C.C.A. 487, 490.
Five of the specifications of error challenge the refusal of the court to give five specific instructions; but no exception was taken to the refusal of the court to give any of them and hence the questions they suggest are not presented for the consideration of this court. It is indispensable, to a review in the courts of the United States of any ruling of the trial court upon a request for an instruction to the jury, that it should be challenged by an exception taken and recorded at the time, to the end that the attention of the trial judge may be sharply called to the question presented thereby, and that a clear record of his action and its challenge may be made. Hutchins v. King, 1 Wall. 53,...
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