UNION PACIFIC RAILWAY COMPANY
v.
CALLAGHAN
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Union Pacific Railway Company appealed a judgment in favor of Callaghan in a negligence case, arguing that the trial court erred in refusing to instruct the jury that the engineer's negligence alone prevented recovery. The Supreme Court affirmed the judgment, holding that the defendant waived its exception to the refused instruction by failing to rest its case after the denial and by failing to renew the motion after introducing additional evidence, and that a general exception to multiple jury instructions fails if any single instruction is correct.
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Mr. Chief Justice Fuller delivered the opinion of. the court.
We should not dismiss this writ of error on account of the defective character of the bond but allow a proper bond to be filed, if necessary, which in this instance it is not, as the motion to affirm must be sustained.
It is settled that an exception to the refusal of the trial court to instruct the jury to find for the defendant is waived if made by defendant without resting his case. The question goes to the sufficiency of the evidence, and that is, of course, of the entire evidence. Columbia & Puget Sound Railroad v. Hawthorne, 144 U. S. 202, 206. After defendant’s motion for an instruction in its favor was denied, it put in evidence its rule 227, which manifestly might have had an important bearing. The motion was not renewed, and we think the action of-the court cannot be assigned for error. Again, it is firmly established that where propositions submitted to a jury are excepted to, in mass, the exception will be overruled provided any of the propositions be correct, and where a general exception is taken to the refusal of a series of instructions, it will not be considered if any one of the propositions is unsound. Newport News and Mississippi Valley Co. v. Pace, 158 U. S.
36. It was contended by defendant that the accident was the result of the engineer’s negligence alone, arid that, therefore, plaintiff could not recover. In the light of the-evidence the first instruction requested by defendant was properly refused, and, without considering the others, the exception as taken to the ruling of the court must fail. And no exception was saved to any of the instructions given by the court on the whole case.
Judgment affirmed.
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Citator
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Boston Ins. Co. v. Fisher, 185 F.2d 977 (8th Cir. 1950)…not indebted to said plaintiffs and said plaintiffs are not entitled to recover from the defendant.” The motion was not granted. The defendant introduced its evidence. That constituted a waiver of the motion. Union Pacific Railway Co. v. Callaghan, 161 U.S. 91, 95, 16 S.Ct. 493, 40 L.Ed. 628; Hansen v. Boyd, 161 U.S. 397, 403, 16 S.Ct. 571, 40 L.Ed. 746; Geo. D. Horning, Inc. v. McAleenan, 4 Cir., 149 F. 2d 561, 565; Boulter v. Commercial Standard Ins. Co., 9 Cir., 175 F. 2d 763, 768; Ruud v. American Pac…1 / 2
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Geo. D. Horning, Inc. v. McALEENAN, 149 F.2d 561 (4th Cir. 1945)…penter v. Durell, 6 Cir., 90 F. 2d 57. While it is true that the introduction of evidence by the defendant after denial of a motion for a directed verdict at the close of the plaintiffs’ case was a waiver of that motion, Union Pac. Ry. v. Calaghan, 161 U.S. 91, 16 S.Ct. 493, 40 L.Ed. 628; Accident Ins. Co. v. Crandal, 120 U.S. 527, 7 S.Ct. 685, 30 L.Ed. 740; Detroit United Ry. Co. v. Nichols, 6 Cir., 165 F. 289, we think the plaintiffs in this case were, on the evidence, in no stronger position at the clo…
Authorities Cited
- Columbia & Puget Sound R.R. Co. v. Hawthorne, 144 U.S. 202 (U.S. 1892)
- Newport News & Miss. Valley Co. v. Pace, 158 U.S. 36 (U.S. 1895)