Newport News Mississippi Val Co v. Pace, 223

• Decision Date: 22 April 1895
• Docket Number: No. 223,223
• Citation: Newport News Mississippi Val Co v. Pace, 158 U.S. 36, 15 S.Ct. 743, 39 L.Ed. 887 (1895)
• Parties: NEWPORT NEWS & MISSISSIPPI VAL. CO. v. PACE
• Court: U.S. Supreme Court

158 U.S. 36

15 S.Ct. 743

39 L.Ed. 887

NEWPORT NEWS & MISSISSIPPI VAL. CO.

v PACE.

No. 223.

April 22, 1895.

Holmes Cummins and Maxwell Evarts, for plaintiff in error.

Hamilton Parks and Henry W. McCorry, for defendant in error.

Mr. Chief JusticeF ULLER delivered the opinion of the court.

Errors are assigned to the admission of evidence 'against defendant's objection,' and 'notwithstanding objection by the defendant,' but the bill of exceptions does not show any exception taken to the overruling of these objections.It is also claimed that in a particular instance evidence offered by defendant was improperly excluded, 'on plaintiff's objection,' but no exception to the action of the court appears to have been preserved.

The questions sought to be raised cannot therefore be considered, as the settled rule is, as stated by Mr. Chief Justice Taney in U. S. v. Breitling, 20 How. 252, 254, that the fact that objections are made and overruled is not sufficient, in the absence of exceptions, to bring them before the court.

Errors are also assigned to parts of the charge, and here, again, it was long ago determined that it is the duty of counsel excepting to propositions submitted to a jury to except to them distinctly and severally, and that, where they are excepted to in mass, the exception will be overruled, provided any of the propositions be correct (Rogers v. The Marshal, 1 Wall. 644;Harvey v. Tyler, 2 Wall. 328;Block v. Darling, 140 U. S. 238, 11 Sup. Ct. 832;Jones v. Railroad Co., 15 Sup. Ct. 719) while a general exception taken to the refusal of a series of instructions will not be considered if any one of the propositions be unsound (Bogk v. Gassert, 149 U. S. 17, 26, 13 Sup. Ct. 738, and cases cited).

Pace was a cattle drover and dealer in live stock.September 19, 1890, he shipped at Obion, Tenn. (a station on the line of the Newport News & Mississippi Valley Company), a carload of cattle to be carried to Louisville, Ky.He entered into a contract with the company to pay it $40, as the cost of the transportation of the stock, which included his own carriage on the train to attend and care for the cattle.The following night, while the train was passing over the road, it became uncoupled, and the rear end, where Pace was, in the caboose, stopped, while the engine and forward cars ran ahead.Evidence was given tending to show that, at the time the train broke in two, Pace was warned by the conductor and the brakeman of the danger of another train following them, which might not be signaled in time to prevent a collision, and that safety required him to get off, but all this was denied by Pace.The proper signals were not given, and shortly thereafter a train also going towards Louisville ran into the train on which Pace was traveling, and he was injured.

The bill of exceptions states:

'The defendant requested the court to instruct the jury as follows: 'If you find from the proof that, just previous to the collision, plaintiff was warned by the conductor and brakeman of the danger of going to sleep or remaining in the car in which he had been riding while it was standing on the track, and if you further find that plaintiff, after being so warned, then could have escaped, such negligence then will bar him from such recovery; or if you find from the proof that the plaintiff was told by the conductor and brakeman of the danger, and that he had time after such warning to...