trial court to give instructions asked, which does not specify the errors as required by the rules, but which designates several instructions by number, and alleges error generally on the refusal to give all of them. 4. SAME-ARGUMENT OF COUNSEL.

Where, on the trial of an action for a personal injury, on objection by defendant to the argument made to the jury by plaintiff's counsel relating to the measure of damages, the judge directed the argument to proceed, stating that he would endeavor to cure the matter by his charge, and it does not appear from the record on appeal that the subject was again mentioned by court or counsel, and it was not urged by defendant as a ground for new trial, it must be presumed that the matter was not regarded as prejudicial, and it will not be held ground for reversal. 5. MASTER AND SERVANT-RAILROADS-DUTY TO INSPECT CARS.

The duty of a railroad company to make a reasonable inspection of cars which its employés are required to use and handle, whether its own or those of another company, is a positive one, which it owes to the employés; and for the failure of inspectors, to whom it has delegated such duty, to make a proper inspection, it is liable to an employé who is required to handle a defective car and is thereby injured, where, by reason of his employment or the circumstances of the case, he has no full opportunity to observe the defect.1

6. SAME INJURY OF SERVANT-CONTRIBUTORY NEGLIGENCE.

Plaintiff was night foreman in the switch yards of defendant railroad company. About 10 o'clock at night certain flat cars of another road arrived in the yards. and were inspected by the regular inspectors, after which plaintiff had an engine attached thereto and started to move them. After they had started and were moving slowly, he observed that a brake was set on one car, and, climbing on the next car, he started to step from one to the other; reaching forward and taking hold of the brake wheel as he did so. The nut was gone from the top of the brake rod, and the wheel came off, causing him to fall between the cars, and he was run over and his arm crushed. Held, that he could not be said, as a matter of law, to have been guilty of contributory negligence in failing to examine the brake, under the circumstances.

In Error to the Circuit Court of the United States for the Southern District of Mississippi.

This is an action to recover damages for personal injuries, brought by E. T. Clements against the New Orleans & Northeastern Railroad Company, a corporation created under the laws of the state of Louisiana, and tried before the circuit court and a jury, in which a verdict and judgment were rendered against the defendant for $12,500. There was a motion by the railroad company for a new trial, which was overruled, and thereupon this writ of error was sued out. The defendant in error, Clements, was an employé of plaintiff in error in its Meridian yards, in the capacity of night yard foreman. It was his duty to place cars coming into Meridian on tracks or sidings where they belonged, according to the course of business of the company. The company had certain inspectors in the yard, whose duty it was to inspect all cars as they came in, and it was Clements' duty to handle such cars after they had been inspected. He had an engine and crew under him to assist in handling these cars. On the night of October 15, 1897, a train of flat or gondola cars, loaded with gravel, consigned to Meridian, reached Meridian on the Alabama Great Southern Railroad about 9 o'clock p. m. These cars were immediately inspected by the inspectors, and about 11 p. m. Clements proceeded to place the cars on their proper track. For this purpose he had the engine coupled to the cars, and on signal by him the engine pulled the cars forward. Clements, having first cut the cars intended to be moved from other cars to which they were coupled, started forward the way the cars were moving,-walking along the south side of the cars. Noticing that a brake on one of the cars-a flat car belonging to

1 As to duty of railroad companies to furnish safe appliances, see note to Felton v. Bullard, 37 C. C. A. 8.

the Alabama Great Southern Railroad Company-was "set up," and that the car was jerking along impeded by the brake, he, in pursuance of his duty, climbed on front of the adjoining car in order to let the brake off. Having reached the platform of the connecting car, the cars then being slowly moving, he turned and stepped from that car forward to the end of the next car, where the brake was, at the same time reaching forward and taking hold of the brake wheel. The wheel of the brake came off, and Clements fell backward and against the end of the car from which he had just stepped, and thence to the ground, on the right side of the train,-the side opposite to that from which he had climbed,-and his left hand fell across the rail and was run over, and so injured that it had to be and was amputated. It transpired that the nut which belongs on the top of the brake rod was absent, and there was evidence that it had been off a day or two. This nut is for the purpose of holding the brake wheel on, and the brake wheel came off because of the absence of this nut. The action was predicated upon the alleged negligence of the company in not properly inspecting the car, the plaintiff alleging that he was exercising due care. The railroad company, in defense of the action, denied the alleged negligence, and also denied that the plaintiff was in the exercise of due care, and pleaded certain rules of the company which it claimed made it the duty of Clements to inspect the brake wheel, and averred that Clements had ample time and opportunity to so inspect said brake as to have discovered said defect and thus guard himself against injury, and that plaintiff was guilty of contributory negligence.

John W. Fewell, for plaintiff in error.

Hoke Smith, for defendant in error.

Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.

PARDEE, Circuit Judge (after stating the facts as above). The first assignment of error is based upon the following:

"On the cross-examination of plaintiff. E. T. Clements, the counsel of defendant asked the said Clements, who was testifying in his own behalf, the question, 'Now, Mr. Clements, didn't you get a large sum of money (four or five thousand dollars) from an accident insurance company, on a policy on your life and limb, at that time? which question was objected to by the plaintiff's counsel as irrelevant and immaterial. The court sustained said objection, to which the defendant then and there, in open court, and in the presence of the jury, excepted."

The bill of exceptions does not show for what object the question was asked, nor how it was connected with any of the facts in the case. Our attention is called to no plea which made any such evidence material.

The second assignment of error is based on the following:

"On the redirect examination of the plaintiff, Clements, by the plaintiff's counsel, the following question was asked: 'What else was there for you to take hold of to steady yourself as you crossed from one car to the other, except. the top of this?' (meaning the brake wheel). This question was objected to by defendant, the objection overruled, and defendant excepted. The witness. answered, 'Nothing else, sir.'"

The bill of exceptions does not show any ground of objection.. There is no statement of evidence showing, or tending to show, what, if any, connection the question bore to the other facts in the case. We find in another bill of exceptions that the plaintiff, Clements, gave evidence tending to show how he received his injury, -that it was in climbing from one car to another, and using a brake wheel to support himself,-in connection with which this question may have been admissible.

The third assignment of error is to the effect that the court erred in sustaining the objection of the plaintiff to the introduction of rule 242, as follows:

"Rule 242. Rules for Freight Brakemen. They are charged with the management of the brakes, and the proper display and use of train signals. They must examine and know for themselves that the brakes, ladders, running boards, steps, etc., which they are to use, are in proper condition, and, if not, put them so, or report them to the proper parties and have them put in order before using."

The bill of exceptions shows that the plaintiff objected to the introduction of this rule as irrelevant and immaterial to the issues, and the court sustained the objection. By its terms the rule is for the government of freight brakemen. The plaintiff in the case was a yard foreman, not ordinarily called to do a brakeman's duty, but in the instant case incidentally called to let off a certain brake. As to him, and the duties which he was called upon to perform, the rule is inapplicable, and its introduction could have in no wise benefited the plaintiff in error, but might have misled the jury. If the rule had any special application, the bill of exceptions should have set forth the facts showing such application. We cannot infer them, nor are we called upon to search the record for evidence upon which to sustain the objection.

The fourth assignment of error is that the court erred in overruling the objection of the defendant in the court below to the several questions, numbered 1 to 12, inclusive, asked on the cross-examination by plaintiff of the witness W. S. Orr. In regard to this matter the bill of exceptions shows the following:

*

"Upon the recross-examination of the witness, W. S. Orr, he was asked by the plaintiff's counsel the following questions: 'By Mr. Smith: Q. You had been working in that yard a good many years, hadn't you? A. About four years, or three and a half. 1 Q. Don't you know, Mr. Orr, the fact is that men handle the cars after they are turned over to them-use them-without inspection there, and had habitually done so? (Objected to by the defendant. Objection overruled, and the defendant excepted.) 2 Q. I will ask you another question: Is it not true, Mr. Orr, that, outside of the inspectors, that the other employés in your yard at Meridian prior to the time when Mr. Clements was hurt, and for a long time prior to that, did not undertake to inspect the tools and machinery for their use, to see to its condition? (Objected to by the defendant. Objection overruled, and defendant excepted.) A. I don't exactly understand what you mean. 3 Q. I read you this rule, and I will ask you if this is not true: That that, as a rule, was entirely disregarded and abrogated in your yard: "Employés of every grade are warned. Is it not true, now, that the ordinary hands in the yard there, who were handling the brakes, -handling the cars,-didn't undertake to examine them, and didn't undertake to see that they were in proper condition, but relied upon the inspection of the inspectors? A. Yes, sir; I think so. Q. That is true, isn't it? A. Yes, sir. 4 Q. Isn't it true that- A. In some cases they did, and in some they didn't. 5 Q. Well, now, in what cases? A. Well, sometimes they would take a train and go off with it, and they don't care if it was inspected or not. 6 Q. Well, I was talking about the yardmen? A. Well, that is the same thing. 7Q. They would sometimes take a train before you inspected it? A. Yes, sir. 8 Q. Isn't it true that they did not undertake-the separate employés-to inspect for themselves? A. Yes, sir; that is right. 9 Q. They never did that? A. No. 10 Q. They were never required to do that in that yard, were they? A. Not that I know of, they weren't. Mr. Smith: 11 Q. What you stated was, as I understood you, in point of practice the men actually handling the trains didn't undertake to do any inspecting? A. None at all that I knew of, they

didn't. Q. And you had been there how many years? A. Three and a half. Q. Prior to this accident? A. Yes, sir.' To each one of said questions, numbered 1 to 12, both inclusive, when each was asked, and to the answers thereto, the defendant then and there objected, and said objections were each overruled by the court, and the answers thereto permitted to go to the jury, to which several rulings the defendant then and there excepted. The said questions and answers being of the same nature, and eliciting answers directed to the establishment of the same point, they are not set out separately, but exceptions were separately taken."

The ground of objection to these questions is not set out. We are not informed what the direct examination of the witness was, and we are left wholly to inference as to whether the cross-examination was upon matters brought in chief, or was entirely independent thereof.

The fifth assignment of error is that the court erred in overruling the objection of defendant to the questions put by plaintiff below to his witness A. Moritz as to whether any rule was in force in the yard, prior to Clements' injuries, which required the men other than inspectors to inspect machinery, and as to what knowledge witness has as to whether foreman and men undertook to inspect each piece of machinery before using it, and whether they relied in practice upon the inspection already made, and whether witness, as a superior officer of men, knew and approved of men not making inspection, and that the train master was often in yard and saw how it was done. The bill of exceptions shows that the objection to Mr. Moritz's evidence was general, no reason being given, and we are unable to form an opinion as to whether or not it was admissible under the pleadings and evidence in the case. The same may be said as to the sixth exception, relating to the same witness' evidence, except to the question what length of time it would take a brakeman to examine the fixtures of each brake. The objection made was that it was a matter of opinion. If the question was otherwise proper, and we presume it was,-we fail to see anything in the particular objection made.

The seventh assignment of error reads as follows:

"The court erred in refusing to give to the jury the instructions requested by defendant, and numbered 1, 2, 3, 4, 5. 6, 7, 8, 9, 10, 11, 12, 13, and 14, which said instructions are set out in the special bill of exceptions No. 2, herewith presented and referred to."

Our rule 11 (31 C. C. A. cxlvi., 90 Fed. cxlvi.) provides that, when the error alleged is to the charge of the court, the assignment of errors shall set out the error referred to in totidem verbis, whether it be in the instructions given, or, in the instructions refused. In Gallot v. U. S., 87 Fed. 446, 31 C. C. A. 44, this court held:

"By the twenty-third and twenty-fourth assignments of errors we are informed that the court below erred in its charge given to the jury, in each portion thereof marked by lines in said written opinion, and marked 1, 2, 3, 4, 5, 6, 7, 8, and 9, and shown in the bill of exceptions No. 5, and the court erred in refusing each of the several charges and instructions in Nos. 2 and 5, as shown in the bill of exceptions. * * The assignments of errors

Nos. 19, 20, 23, and 24 being in violation of the above rules 10 and 11 of this court, we decline to examine and pass upon the questions attempted to be raised thereby." 87 Fed. 447, 448, 31 C. C. A. 45, 46.

See Distilling Co. v. Rheinstrom, 30 C. C. A. 10, 86 Fed. 244; Grape Creek Coal Co. v. Farmers' Loan & Trust Co., 12 C. C. A. 350, 63 Fed. 891; National Bank of Commerce of Kansas City v. First Nat. Bank of Kansas City, 10 C. C. A. 87, 61 Fed. 809; Haldane v. U. S., 16 C. C. A. 447, 69 Fed. 819.

The eighth assignment of error is that the court erred in denying the motion of defendant to exclude the evidence adduced by the plaintiff, and render a judgment for the defendant. This assignment of error does not appear to be insisted upon, and is, under the evidence in the case as set forth in the bill of exceptions, evidently not well taken.

The ninth assignment of error is based upon the following proceedings:

"Be it remembered, that on the trial of this cause on the 18th day of March, 1899, at a regular term of said court, before the court and jury, Mr. Hoke Smith, of counsel for plaintiff, making the concluding address to the jury, among other things, spoke in his said address to the jury as follows: 'It [referring to tables of expectations offered in evidence] don't mean that all men will die at sixty-six, or that any one man will die at sixty-six, but it means that the average length of life of men thirty-three years old is thirty-three years more. Some may stretch it to eighty or eighty-five, some may drop by the wayside at forty or thirty-five, but the average life of a man thirty-three years old is thirty-three years more. Now, we have no power of prophecy. We are unable to tell how long Mr. Clements will live, but can with reasonable accuracy act upon his life by saying we will allow him the average life of a man thirtythree years old. That is what the law allows me to put this table in for,-to give the average life of a man thirty-three years of age, so you can, in estimating his loss, estimate by the average. Now, gentlemen of the jury, under this proof his average loss is $840 a year for 33 years. That would run up into the neighborhood of thirty thousand dollars, but I don't claim, gentlemen of the jury, that he is entitled to multiply his losses for the year with the number of years, because if he lived the 33 years he would have gotten this sum year by year until the end of the time, and the amount that is paid under your verdict is paid in cash, and it would not be right to ask you to give him the same. You have to give him what is termed the "present value" of the money. What is the present value of a yearly payment of $840 a year for thirty-three years? Now, the present value of one dollar for 33 years, at 6 per cent. is about $13. The present value, therefore, of $840 for that length of time would be 840 times $13, or about $11,000. That part of his recovery is capable of mathematical estimation, and is not left to your discretion.' (The defendant here interposed an objection to the line of argument, because it is not based upon a correct theory of the law. Defendant thereupon moved the court to instruct the jury to disregard the argument.) The Court: Proceed with the argument. Mr. Fewell: You overrule my motion? (No reply.) I do not admit he is entitled to any amount. I do not find, if your honor please, where any rule is positively laid down- The Court: Proceed with the argument of the case. I will endeavor to cure this thing when I instruct the jury. "The defendant then and there, in the presence of the jury, by its counsel, excepted to the action of the court above set out, and tenders this, its bill of exceptions, which is signed and sealed, and made part of the record, this 9th day of May, 1899. H. C. Niles, Judge."

From these proceedings, we take it that the trial judge expressed his disapproval of the line of argument pursued, and said, "I will endeavor to cure this thing when I instruct the jury." Whether he did further express his disapproval to the jury can be determined only by inference. Another bill of exceptions purports to give the oral charge of the judge to the jury, in connection with 18 requested