Fisher Mach. Works Co. v. Dougherty

• Decision Date: 28 February 1916
• Docket Number: 4449.
• Citation: 231 F. 910
• Parties: FISHER MACH. WORKS CO. v. DOUGHERTY.
• Court: U.S. Court of Appeals — Eighth Circuit

231 F. 910

FISHER MACH. WORKS CO. v. DOUGHERTY.

No. 4449.

United States Court of Appeals, Eighth Circuit.

February 28, 1916

Rehearing Denied May 1, 1916.

Ewing C. Bland, of Kansas City, Mo., and Arthur M. Jackson, of Leavenworth, Kan. (Glenn R. Donaldson, of Kansas City, Mo on the brief), for plaintiff in error.

John H Atwood, of Kansas City, Mo. (O. S. Hill, of Kansas City, Mo on the brief), for defendant in error.

Before ADAMS and CARLAND, Circuit Judges, and TRIEBER, District Judge.

CARLAND Circuit Judge.

Dougherty, hereinafter called plaintiff, sued the machine company, hereinafter called defendant, to recover damages for personal injuries received by him and which he alleged were caused by the negligence of the company. At the trial a verdict was returned, upon which judgment was rendered in favor of the plaintiff. The defendant brings the case here, assigning eight errors on which it prays a reversal of the judgment below.

First. It is assigned as error that the court erred in overruling the defendant's demurrer to plaintiff's evidence. The demurrer was waived by the introduction of evidence on the part of defendant, and no demurrer was interposed at the close of all the evidence.

Second. It is assigned as error that the court erred in overruling the objections made by defendant to the evidence introduced by plaintiff. The evidence admitted, or the full substance thereof, is not quoted in connection with this assignment of error. Rule 11 (150 F. xxvii, 79 C.C.A. xxvii). In the brief there is a statement under this head of two rulings of the court--one, a refusal to strike out a portion of an answer to a question propounded by defendant's counsel to plaintiff; the other, an admission of evidence from the same witness that he had no rupture prior to the accident. The motion to strike related to a reference to this rupture by the plaintiff when defendant's counsel was asking him concerning his injuries. Both objections were made for the reason that plaintiff did not plead anything about a rupture. The plaintiff alleged in his petition that 'his legs and the lower parts of his body were mashed or crushed'; that 'he was injured internally, the exact nature and extent of which plaintiff cannot at this time more definitely state.' If the defendant thought the petition was indefinite as to the injuries received by the plaintiff, it could have by motion had it made more specific. No such motion having been made, we think the testimony in regard to the rupture was admissible.

Third. That the court erred in its instructions to the jury. The portion of the charge alleged to have been erroneous is not set out totidem verbis. Rule 11. Moreover, the record shows that there was no exception taken to the charge of the court as given.

Fourth. That the court erred in refusing to give certain instructions requested by defendant. The instruction refused is not set out, as required by rule 11. We have, however, in the interest of justice, examined the record, and find that counsel did request two instructions, which were refused, and an exception allowed. They are as follows: (a) The defendant requests the court to instruct the jury that the plaintiff in this case assumed all of the open, ordinary, and obvious risks of his employment. This request was inapplicable to the case on trial, for the reason that there was evidence that the defendant promised to warn the plaintiff...