EASTMAN, GARDNER & CO. v. NEWMAN, 112 F. 122

PARDEE, Circuit Judge (after stating the facts as above). We find a bill of exceptions in the record covering some 70 printed pages, apparently giving a history of the case from impaneling the jury to the overruling of a motion for a new trial. While we find therein several objections noted to the introduction of evidence whicli were overruled, we fail to find therein any exceptions taken to such rulings; nor, in fact, from the beginning to the end of the bill of exceptions, do we find that the defendant below excepted to, or was dissatisfied with, any ruling of the court until after the verdict.

After the verdict the bill of exceptions shows the following: “The defendant mores the court to> set aside the verdict of the jury in the above-stated cause for the following reasons, to wit:

(1) The court erred in refusing to grant the peremptory instructions requested by the defendant.

(2) The verdict of the jury was contrary to the law and the instructions of the court.

(3) The verdict of the jury was contrary to the evidence.

(4) Because the damages are excessive. Assignment of errors to accompany motion for new trial:

(1) The court erred in refusing to grant the peremptory instructions asked by the defendant.

(2) The court erred in refusing to set aside the verdict of the jury and to grant the defendant a new trial.” No assignment of errors, according to our rules, has been filed in this court, and the case has been argued as though such assignment had been here filed, and also as though' the record shows that the defendant below asked the court for a peremptory instruction for the defendant, because the undisputed evidence showed that Clark, who negligently handled the machinery, was a fellow servant with Newman, the plaintiff. The defendant below pleaded the general issue and contributory negligence.

Conceding that, under the general issue, the defendant may invoke the fellow servant doctrine, still we are unable to find in the record that the matter was mentioned in the trial court, nor can we find that any time after jury sworn and before verdict rendered the defendant requested any instruction, peremptory or otherwise, on any ground whatever. The charge to the jury is not included in the record, and the presumption is that the trial judge charged the law correctly on all the points involved.

The refusal to set aside a verdict and grant a new trial, because the verdict is contrary to the evidence, the law, or the instrucr tions of the court, is not reviewable on writ of error. The declaration warrants the judgment, and the record shows no reversible error. Affirmed. '