GRIFFIN v. OVERMAN WHEEL CO., 61 F. 568

PUTNAM, Circuit Judge. When the defendant in the court below moved that a verdict be directed in its favor, it was put in the fol-. lowing form, as appears by the record: “The defendant offered no testimony, and at the conclusion of the plaintiff’s testimony asked the court to rule that there was no evidence that the' said John Griffin was in the exercise of due care.” John GrifSn was the person on account of whose death the action was commenced.

The record then proceeds: “The judge so ruled, and ordered a verdict for the defendant, and thereupon a verdict was so returned; to which ruling and order the plaintiff excepts, and she prays that her exceptions may be allowed.” By the form of the defendant’s request for this ruling it limited itself, for all the purposes of this.appeal, to the precise proposition stated by it.

The practice in the federal courts is thoroughly settled that when one party makes a motion, or interposes an objection,' on grounds specifically stated, he cannot, at a subsequent stage of the case, shift'or enlarge his position, unless perhaps when it clearly appears that by so doing no detriment could come to the other party. Therefore the party so moving or objecting is ordinarily required to put his finger on the very pith and marrow of what he claims, and is ordinarily held to waive everything' except wha,t is so pointed out.

Xon constat, that if the defendant had expressed its motion generally, or if it had been expressed specifically with oilier reasons than those which were stated, the plaintiff might, with the leave of court, which is always easily obtained, have supplied any other deficiency. For this reason the only question before this court is whether the record shows there was evidence to go to the jury that Griffin was in the exercise of due care in connection with the injury which occurred to him.

It was suggested at the argument of the case that, even under the employers’ liability act of Massachusefls, on which statute plaintiff relies, the federal courts will apply their general rule that the want of due care on the part of the plaintiff, in a case of an injury happening through negligence, is a matter of defense, and that the plaintiff is not ordinarily required, in the first place, to give evidence touching it.

That question was not raised in the circuit court, and has not been brought before us in such form as renders us desirous of disposing of it, and we are not required to do so in the present-case. We do not deem it. necessary to set out the evidence in the court below, or to analyze it, in this opinion, and we consider it, sufficient ro say that the case falls within the practical application of the rules Touching due care, and of the inferences to be drawn from the facts proven, which are accepted and approved in Maguire v. Railroad Co., 146 Mass. 379, 382, 15 N. E. 904; Thyng v.

Railroad Co., 156 Mass. 13. 16, 30 N. E. 169; and Maher v. Railroad Co., 158 Mass. 36, 44, 32 N. E. 950. We do not intend to suggest whether the propositions covered by these cases, and which we apply to the case at bar, are or not mere rules of evidence as to which we are bound by the decisions of the highest court of the state of Massachusetts, because, whether we are bound by them or not, they meet our approval, which is sufficient at present.

We will only add that the circumstances of the various cases which we cite, as well as those of that at bar, essentially distinguish them from cases like that of the approach of a traveler to a railroad crossing, where, ordinarily, it is necessary to show the performance of some positive duty on the part of the person injured in order to make out due care. Judgment of the circuit court, reversed, and case remanded for further proceedings. NELSON, District Judge, concurs in this opinion.