LINEHAN RAILWAY TRANSFER CO. v. MORRIS et al., 87 F. 127

BUNN, District Judge (after stating the facts as above). There are several assignments of error, only two of which are discussed and relied upon by the plaintiff in error in the brief of counsel, oral arguments having been waived. One of these relates to the general instructions given by the court to the jury, and the other to a series of special instructions asked for by the defendant on the trial, and which were refused by the court. But the difficulty with the case for the plaintiff in error is that these assignments of error are not supported by proper exceptions taken on the trial.

The general charge of the court, printed in the record, seems intended to present the issue fully and fairly to the jury, in so much that no exception whatever was taken to it by either party on the trial. No exception being taken on the trial, no advantage can be taken here of any supposed errors in the charge. Hana v. Maas, 122 U. S. 24, 7 Sup. Ct. 1055; Stewart v. Cattle-Ranche Co., 128 U. S. 888, 9 Sup. Ct. 101. The plaintiff in error is in no better condition as regards the special instructions requested.

There were quite a number of special instructions asked for in mass, which were refused, perhaps, because the general charge was so full. A general exception only was taken to such refusal. It is the well-settled rule of this court that, where' only 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. Railroad Co. v. Callaghan, 161 U. S. 91, 16 Sup. Ct. 493; Newport News & M. V. Co. v. Pace, 158 U. S. 36, 15 Sup. Ct.743.

Supposing, but not conceding, that this rule casts the burden upon the court to run through all these special requests, to find one that was properly refused, the court has not far to look in this case to find such an instruction. We think all of those relating to the use of the rope instead of a chain to hoist the logs are of this character, as the gist of negligence charged, as we have seen, did not lie in that direction. The first instruction asked was as follows: “Yon liave nothing to do with the question whether these timbers or squared logs might have been raised to the deck of the steamer H. S.

Mc-Comb by some other means than a steam derrick. The plaintiffs complain that the defendant was guilty of negligence in using a rope instead of a chain while hoisting the timbers by means of a steam derrick.” Tliis instruction was not sound, because not true, as no such issue was made by the pleadings. Under the declaration, the negligence may just as well have consisted in a negligent and improper use or handling of the rope, as in the use of a rope instead or a chain. There are other instructions, also, which will not bear close scrutiny, but it is not necessary to specify.

If counsel are content, with taking only a general exception to the refusal to give a series of special instructions, they cannot complain if the court does not exert itself extraordinarily in pointing out seriatim all the defects contained in such a series. Judgments affirmed.