ATCHISON, T. & S. F. R. CO. v. MULLIGAN, 67 F. 569

WOODS, Circuit Judge. This was an action in the nature of trespass upon the case for a personal injury received by the appellee, Patrick Mulligan, alias Patrick Guiver, while in the employ of the appellant, the Atchison, Topeka & Santa Fó Railroad Company, as a hostler’s helper, his duty being to assist in the switching of engines in the yards of the company near Chicago.

It is alleged that the footboard on the front of the engine about which the plaintiff was engaged when hurt was defective, unsound, unsáfe, unsuitably and improperly constructed, adjusted, and secured, and that, while the plaintiff in the performance of his duty was attempting to get upon the same it gave way, and caused him to fall under the engine, whereby he was injured.

Negligence in other respects is averred, but the court by its first, second, fourth, and fifth instructions, which are set out in the margin, restricted the jury to the ques-lion of the plaintiff's right to recover on account of Hie defective construe (ion and condition of the footboard. This being so, the objections made to testimony which was admitted concerning negligence in other particulars are immaterial, and need not be considered.

The evidence concerning the push pole, which at the time of the accident was upon the front of the engine when its proper place was elsewhere, was admissible to show the circumstances of the injury; and under the court’s charge the jury could not reasonably have regarded it as more than an incidental matter.

The third and fourth specifications of error, which relate to the giving and "refusing of instructions, do not conform to the requirement of our rule 11, that the assignment “shall set out separately and particularly each error asserted and intended to be urged.” The third assignment is that “the court erred in giving to the jury the following instructions,” and there follow portions of the instructions given to the number of five, some of which certainly are free from essential fault.

The fourth assignment is that “the court erred in refusing to give to the jury the following charges, which were severally requested and severally refused”; and there follows a series of twelve requests for instructions, some of which, it was not error to refuse, because they were embraced in the charge given, and some of which it would probably have been error to give. It has been often decided that a general exception to the giving or refusing of a series of instructions is insufficient. Vider v. O’Brien. 18 U. S. App. ——, 10 C. C.

A. 385, 62 Fed. 326, and cases cited; and even though,.as in this case, the exceptions be properly taken, an assignment of error in respect to instructions will not be good which does not specify separately each error relied on. In addition to the words quoted, the third assignment contains the statement that; counsel for the defendant excepted to eacli portion of the charge complained of. but, while that statement or the substance of it is essential to the bill of exceptions, as a part of the specification of error it is irrelevant and serves no purpose. As stated in Yider v.

O’Brien,, there must be a separate assignment in respect to each part of the charge which is alleged to be erroneous, or, at least, it must be distinctly alleged that there was error in giving or refusing each severally of the propositions which it is intended to challenge. In short, the same rule governs the saving of exceptions and the assigning of errors, and upon reason it should be so. In some respects the instructions given are objectionable, and some of the requests which were refused ought perhaps to have been given, 'but the errors are technical, and probably did not affect the result.

For instance, the court instructed that “the undertaking of the .defendant was to furnish reasonably safe machinery and appliances for the service in which the plaintiff was engaged,” when the instruction should have been to the effect that the defendant was bound to use reasonable diligence to furnish safe machinery and appliances. This, besides not having been made the subject either of an exception or an assignment of error separately from other distinct propositions in the charge, is, so far as it goes, the same as an instruction which the appellant asked to be given.

Again, the third instruction asked and refused was to the effect that the plaintiff could not récover on account of the manner in which the foot-board was constructed. The board was made of oak, was about two inches thick and ten or twelve inches wide. There was certainly no danger that jurors could be made to think such a board, if securely fastened, unsafe merely because the stirrups on which it rested did not by two or three inches extend entirely to its outer edge.

The plaintiff’s theory of the case as developed at the trial and insisted upon was that the accident was caused by a crack in the board, which, beginning at the end, ran lengthwise on a line about three inches from the front edge, and had negligently been permitted to remain.

The jury had a right to consider the manifest fact that the danger frofii such a defect in the footboard was enhanced by reason of the shortness of the stirrups, but that it was necessary to instruct against a finding of negligence in the manner of original construction alone can hardly be believed without attributing to the jury a want of ordinary intelligence.

If it were apparent that either in giving or refusing instructions the court had committed an essential error, to the probable injury of the appellant, we should not be inclined to insist upon a strict compliance with our rule in respect to the assignment of errors, though it is expressed in very clear terms, and need not be misunderstood.

By the last clause of the rule, “the court at its option may notice a plain error not assigned,” or, of course, one defectively assigned; but when, as in this case, the error itself is technical, and it can be said, not with certainty but with great probability, that it did not affect the verdict, the rule may well be applied with strictness. It is always a matter of regret when a judgment or decree must be reversed for errors which may or may not have affected the result, and we deem it a sound public and judicial policy to hold in such cases that a technical error must be technically well assigned.

The fifth and sixth assignments are not insisted upon, and it remains to consider only the first, which is to the effect that the court erred in refusing to direct a verdict for the defendant. Four reasons are assigned why that should have been done, namely:

(1) That there was no evidence fairly tending to show negligence of the defendant causing the injury; (2) that the accident was the result of the usual hazards of the employment which the plaintiff assumed; (3) that the plaintiff had the same opportunity for discovering the condition of the footboard that the defendant had, and it was equally his duty to discover defects which were obvious; and (4) that, if there was negligence in failing to discover the defective condition of the footboard, it was the negligence of the engineer, whose duty it was to make the inspection, and who was a fellow servant of the plaintiff.

We are not able to say that the evidence did not justify the submission of the question of negligence to the jury. From the mere fact that the footboard gave way under the appellee, as he testified and presumably the jury found that it did, the natural, if not necessary, inference would be either that the board had become unsound, or was insecurely fastened; and I he inference that it had become unsound is supported by (die evidence offered of the condition of the board after the accident.

That condition, it is true, might be accounted for on the supposition of the appellant that the board was split by reason of its contact with ihe appellee after his fall, but that would be inconsistent with the testimony of the appellee that Ms fall was caused by the board’s giving way. Between the conflicting theories of the accident it was the province of the jury to decide, though it could be done only by inference. There is in the' case no question of notice to the appellant of the defective condition of the footboard.

The duty of inspection, it is conceded, was intrusted to the engineer, wlio had daily charge of the engine, and without fault could not have failed to discover the condition of the footboard if it had become so unsound as to give way in the manner asserted. The contention of the appellant that the split in the board, which ivas discovered after the accident, was caused by contact with the appellee after he had fallen, as already stated, is inconsistent with the testimony of the appellee that it gave way when he stepped upon it.

If the jury believed that testimony, as it had a right to do, it must have rejected the theory of the appellant, and have adopted that of the appellee that the hoard was defective when he stepped upon it, either by reason of long use and decay or of recent injury. This was a question for the jury, and, the judge below having given his sanction to their verdict, it is not our duty to set it aside. In respect to the duty of inspection the engineer represented the company, and was not a fellow servant of the appellee. Railroad Co. v. Baugh, 149 U. S. 368, 33 Sup. Ct. 914; Railroad Co. v. Ward, 10 C. C.

A. 166, 61 Fed. 927. While the appellee should be regarded as having assumed the ordinary hazards incident to his employment, and in emergencies perhaps was bound to protect himself against obvious dangers of whatever character, neither to himself nor to the company was he under a duty to inspect the engines, about which he worked, in search of hidden and unapprehended sources of danger. That was the duty of the company. Railroad Co. v. Kelly, 11 C. C. A. 260, 63 Fed. 407.

Whether or not the unsound condition of the footboard was obvious, and should have been perceived by the appellee, was a question of contributory negligence, in respect to which the appellant had the burden of proof, and consequently could not ask that it be withdrawn from the jury. The judgment below is affirmed, at the costs of the appellant.

(1) Among other duties averted in the declaration to have been imposed upon the defendant by the contract of employment, was to furnish plaintiff, for the performance of his labors in that behalf, an engine, upon and around which to work, safe, sound, properly constructed and equipped with fenders or guards, and with sound, safe, and suitable footboards, and in every way suitable for plaintiff’s work upon and around the same.

Several breaches of these alleged duties are assigned, but that to which the evidence has been particularly directed is the one alleging that the footboard on said engine was defective, unsound, unsafe, unsuitably and improperly constructed, adjusted, and secured, and that while plaintiff in the performance of his duty was attempting to get upon the same it gave way, causing plaintiff to f$ll, and the engine injured him, etc.; and the plaintiff’s testimony was by the court substantially limited to this averment as to the character and condition of the footboard and the connection between the same and plaintiff’s injury.

(2) The general issue was pleaded by the defendant, and this threw the burden upon the plaintiff to establish by the weight or preponderance of the evidence that, while in the exercise of due care and diligence, lie, the plaintiff, while attempting the performance of the duties he had undertaken to perform for the defendant, was injured by reason of the unsafe, unsound, or improperly constructed footboard attached to defendant’s engine.

(4) Under the rules of law, the plaintiff, at the time he entered the service of the defendant, assumed all the ordinary risks incident to the business or employment he undertook to perform, and th,e undertaking of the defendant was to furnish reasonably safe machinery and appliances for the service in which the plaintiff was engaged.

An accidental injury sustained by the rfiaintiff while engaged in defendant’s service of itself creates no liability against defendant, but, in order to fix such liability, the weight of the testimony must show or satisfy you that plaintiff, while using- due care, was injured by means or reason of the improper construction or unsafe and unsound condition of the footboard, and that the defendant either had notice of such defective footboard, if it existed, in time to repair it before the injury, or could or should have known of such defects had reasonable care been taken to properly inspect and keep and maintain the same in repair.

(5) You are the peculiar judges of the evidence on the questions of whether plaintiff was exercising ordinary care at the time of the injury, and also as to whether defendant was negligent in not furnishing an engine equipped with proper and safe footboard, or in failing to maintain the same in repair, and also as to whether plaintiff’s injury resulted from defendant’s negligence with reference to such footboard.