ATCHISON, T.' &11. F. R. CO. V. MYERS.
793
tion of negligence in their practice as atto1'Ileys in the cases. That question is one essentially of fact, which has been found by the court in favor of the appellees (defendants below), and cannot be reviewed here. That court found that the defendants were not guilty of any negligence or unskillfulness, either in the commence, ment or subsequent management of the cases. This court cannot go behind that finding to review the evidence. That is the settled law of this court and of the United States supreme court. We have no power to review the finding of a trial court upon questions ,of facf.We can only inquire whether the facts found are sufficient to supportthe judgment We are satisfied that the findings of fact are supported by the evidence, and that the court has properly applied the law. St. Louis v. Rutz, 138 U. So 226, 11 Sup. Ct. 337; Runkle v. Burnham, 153 U. S.216, 14 Sup. Ct. 837; Reed 9 U. S. App. 34, 3 C. C. A. 244, and 52 Fed. 641, and cases cited; Skinner v. Franklin Co., 6 C. C. A. 118, 56 Fed. 783, and cases cited. The judgment of the circuit court is affirmed.
ATcmSON, T. & S. F. R. co. v. MYERS. (Circuit Court of Appeals, Seventh Circuit. No. 120. 1. REVIEW ON ApPEAL-MoTION FOR PEREMPTORY INSTRUCTION-WAIVER.
October 25, 1894.)
A defendant who introduces evidence in defense thereby waives his motion to instruct the jury at the close of plaintiff's case to find for the defendant sumed not to contain all the evidence.
2. SAME-BILL OF EXCEPTIONS-PRESUMPTION AS TO COMPLETENESS. In the absence of a statement to that effect a bill of exceptions is preS, EXPERT EVIDENCE-COUPLING CAItS.
Expert evidence is not competent to prove that a particular mode of coupling cars is specially dangerous. A railroad company is not responsible to its switchman for injuries caused by defects in a foreign car, if it has inspected the car, and warned him of its defects.
4.
MASTER AND SERVANT-RAILROAD OOMPANy-INSPECTION OF FOREIGN CARS.
5.
SAME-RISKS OF EMPLOYMENT-INSTRUCTIONS.
Where a switchman sues for injuries caused by a defective foreign car, the jury should be instructed as to his assumption of the usual hazards of the service.
In Error to the Circuit Court of the United States for the Southern District of lllinois. This was an action on the case by William Myers against the Atchison, Topeka & Santa Fe Railroad Company. Plaintiff obtained judgment Defendant brings error. This .action was begun by William Myers in the circuit court of Hancock county, Ill., and was removed by the plaintiff in error into the circuit court of the United States for the southern district of Illinois on account of the diverse citizenship of the parties. It was brought to recover damages for the loss of his arm, which was crushed between the deadwoods of two foreign cars which Myers was attempting to couple in the railroad yards at Streator, where he was employed as a switchman. The declaration contained three
7:94: ,defect
,Jl'EDERALREPOltTlllR,
vol. 63.
Qt tQ Qn$llfe aJ;ld of the, JJlovlng car, wblcb was un" K1t6wll'to in tbat one of the Dolts which fastened tbe deadwood to the' carwae, broken, or its nut had come off, so tbat the outer end of the, bolt was loose; and projected' about four iticlles, making the same, extr,emely danThltt, In making the coupliuiJ' in the, usual and ,wd4lary mll:nner, to step between the cars, and' lift the link In the standing car;;lqld enter it in of the moving car as It came against the stMidiiilt car; and then quickly, raise the arm up so as' to .avoid Injury from the plaintiff tbElc()ntaet of the deadwoods. Thatln making the in the proper held the link Ul;).til ,the moving ear came to allow the of the link Into the. drawbar, and then; quickly to raise 1;Iis arm' out of danger, 1mt his arm and sleeve wete;caughtby the broken bolt'ln the deadwood, and held until the deadwoods,. coming together,forced tlle· bolt entirely throu,ill,., his arm, and ,it had to be twice' .8.I\lputated.He alleged tb,at. he used toA-yoid injury. it was the duty of the defendant to have and' keep the car l,n safe, repa!,r/which it negligently failed to do. In the thitd'oount he alleges that'he believed tbe car was in sate condition and good repair, ,and that he acted on sucb beIieMllmaking tlile ·coupllng. , It was shown on the trial error was injured a few minutes after 4 o'clock p. m. of l!'ebruary 22, 1890, while It was yet broad daylight. He bad worked as a railroad brakeman and switchman for three years, and began switching in the Streator yards in .January, 1890. His duty as switchman was to go on and about the cars in the yard; to assist in transferring them;' to and uncolJpl,e ,cars, and do aU such work in connection with the trains, cars, and yard as might be required, and, as such, thatlt'beCli.nIe bis duty:to make the,coupl1ng in whichhewaB engaged when injured. A Delaware, LaCkawllp.na Western car had the loose bolt. The deadwoods on it came out even with the drawbar, and were 12 to 18 inches, wid.e,and,about 18 inches up andllown. They were fastened to the car bolts. :go 'J:irst saw thl$ Cllr in the SantaF6 yard on the morningqf the 9f H¢b,eard the cal' make a statement that morning in relation to this car. It was about 7 o'clock in th ' morning, ancijJ.e '\Vas close to it. '1'he foreIOan, Branz, and the yard master, Case, were 'preseJ1t, The car Inspector said.' the car was in bad order. He told Mr. Case: "'Case, this car is in bad, order, and we hav'e no right to fix the car." The yard master had charge of ilie switching, and 'Branz, foreman of the switch engine, ,acted under him, and plaintiff received his orders from the foreman. ' 'Tlie"car Inspe'cwr' 'marked both sides of the car, with chalk: "Bad order. Return to 'Three J.''' Myers saw the car in the yard two 91' three times during the day; The accident occurred on the "Three I" Y, which connects the Santa with theWnbash:Rallroad. The car came from the He knew the car was to be taken back where it came from, and that it was set out for that purpose. 1\11';' !Whalen was car inspector at Streator. He had,'beencar inllpector of the Santa 12 years. He saw this oar'!n'itbe Santa· yards on 'the morning of ,February 22, 1890. He inspected.:the'.>Cilr,andr : !parked It: "Bad order. Return to ''1'hree I.''' The brake connections were defective. That was all that he found wrong. He, looked this' car, over when inspecting It, and found no other defect. The plaintfff testiflM tllatl1is' andi arm: were caught,wllileattempting to couple the cars, by a bolt which projected about two ort:J;rree from the deadwQ9d tbi,ll· ;foreign Cl!-l',raud in .cp,?-s¢<}l1ence he couldllot remove his arm in timeti:)- avq14 the injUry. He cliihMdiliat he dici notknQW of the defect; andth!l'tlitlie'CQupling 'WM required.':to'be ri.ulde So 'quickly that he had no opportunity to discover It. His arm was crushed between the elbow and wrist, ,abo,ve t!J.e elbow.. On the trlaI"the plaintiff ep'ol'cAUell;:Wm,li:uu, ttialilt"er vf tbeWll.bash, r)l..ilroad, who ,switc;hw,:matld yard and asked him reJM10n ,to and llncoupling cars, an!l the.jllauuer ,of doing the same; llpon objectIon thereto" counsel stated ,til at to p.I;<I'Ve to question the ,following: "1 offerto prqve))y, the l;.opp;llUg cars sl}cb as these twa
ATCHISON-,·.T.&; S. F.R.CO. v; MYERS.
79.5
It .was both unusual and unnecessary, and esp¢CIaUy dangercus, for a person to attempt to make the coupling byplaclng his arm between the del1dwoo"ds, and that the usual and proper way to make It would be to lift the link by reaching over and above the deadwood, or under and around the ·deadwood,'· Leave to prove facts as above stated was denIed by the court, to whIch ruling the plaIntiff In error excepted. When the defendant In error rested his case the plaintiff in error moved the court to take the case from the jury, on the ground that a prima facIe case,for recovery had not been made out.. The court overrUled the motion, and an exception was reserved. At the conclusIon of the evidence the plaintiff In error again moved the court to give the jury a. bInding instruction to return a verdIct in its favor, which motion was overruled and an exception taken. During the closing argUment to the jury, counsel for defendant in error saId: "Even if they had' no report [referring to the Santa F(\ roadl, they -can, by their books, trace that car, from that moment to the present day. They can go to that .other company, and find out where that car, was every hour from the time this Injury occurred up to the present time. They can show where it was repaired, If it was repaired, and, if it was not repaired, theY can show that fact. by competent evidence. They have not done it. They can go to the Wabash, or the road it belongs to, where every number -of thecal'S is kept in a book, and every time it is inspected is recorded, and they can bring that report here, and show whether there was a bolt loose there at that time. If there was no bolt loose there at that time, and no bolt loose since that time, they can show that fact, and it would be pretty 'strong evidence that this man was mistaken," Speclflcobjection was made to the foregoing statement on the ground that there were no such facts in ,eyidet:\ce before the jury, but the court declined to interfere, to which the .plaintiff in error excepted. , Among the instructions given by the court, and excepted to by the plaintiff 'in' error, was the following: "It is the duty of the defendant to furnish its employlis with proper machinery or instrumentalities for their use in the work assigned them, and to see to it that they are kept in a reasonably safe condition, or in reasonable repair. And when an employ(\, in the proper and diligent discharge of his duty, is Injured from the negligent failure of the company to perform this duty, it Is liable." At the proper time the plaintiff in error asked the court to give three written instructions to the jury. The ,third instruction is the only one which it is necessary to set out. It is as follows: (3) "1'he plaintiff was employed by the defendant as a switchman in its railroad yards at Streator, and as such it became and was his duty 'to couple and uncouple the cars handled by the defendant there. By' accepting 'such employment, he aSilumed its natural and usual risks and hazards, ,and, if you believe from the evidence in this case that the injury which the plaintiff received was due to the natural and usual hazards and risks of his employment there as switchman, then the plaintiff cannot recover in this action, and your verdict should be for the defendant." The court refused to -gIve the above instruction, and a proper exception was reserved.
Edgar A. Bancroft and Eldon J. Cassoday, for plaintiff in error. A. W. O'Hara, Timothy J. Scofield, M. J. Wade, and Burns & SuI,!ivan, for defendant in error. Before WOODS, Circuit Judge, and BAKER and SEAMAN, District Judges. After making the foregoing statement the opinion of the court was delivered by BAKER, District Judge. No available error is presented by the refusal of the court, at the conclusion of the evidence of the defend:ant'in error in opening his case, to instruct the jury to return a verdict for the plaintiff in error. The plaintiff in error did not stand upon the mling of. the court,but having elected to proceed with the
796
J'EDERAL REPORTER,
vot: 63.
caseand'introdilce its evidence,8nd take the chances of a verdict in !tsfavor, it has waived itsriglit" If any it had, to avail.itself of the alleged error in the ruling of the court. Railroad Co. v. Oharless, .2 0, O. A. 380, 51 Fed. 562; Elmore. v. Grymes, 1 Pet. 469; De Wolf v. Rabaud, ld. 476; Orane v. Morris' Lessee, 6 Pet. 598; Silsby v. Foote, How. 218; Castle v.Bullard, 23 How,' 172; Railway Co. v. Op"J:kl;nllngs, 106 U. S. 700, 1 04 493;, Irisurance Co. v. Crandal, 120tr. $.1527,7 Sup. Ct685; Insurance Co. v. Smith, 124 U. S. 405, 8 Sup; Ot.534; Bogk v. Hussert, 149U. S. 17, 13 Sup.Ot. 738; Rail144 U. ,13. 202, 12 Sup. Ot. 591. road plaintiff in error had elected ,to stand upon the ruling of the court in J,'efusing toJnstructthe jury to return a verdict in its favor, no. available error would be presented, because the bill 0'1 exceptionsdbes not affirmatively show that the evidence embodied in the is all the evidence that the, plaintiff hadilltroduced at the ·clo.se of his opening of the case. If the alleged error was otherwise available, it could not, be considered ·by us, unless it is that the,'entire evidence which had been introduced by the at the 0,1 hi$ 6pening of the case was brought herebia,proper bill of e;x:cept1ons. No principle of law and no rule of court:requires the entire evidence to be embodied in a bill of exceptions' and' hence the presumption is that the bill of exceptions dgeS not contltin,wlthe evidence before the court at the time the motion was made·. ' "Tp" overcome this presumption ,the bill of exceptions should contain'8 statement, at the close of, the plaintiff's evidence in opening; to'tbe effect that the above and foregoing is all the evidence at,the time the motion was made. At the clolile of the evidence the plaintiff in error asked the court to give a binding instruction to the jury to return a verdict in its favor. The defendant in error insists that this alleged error is waivedll¢C8.1,1se the plaijltiff in error asked the court to give a number of, instroctions upon other points upon which it relied for defense, and took its chances of secw:ing a favorable verdict from the jury. It lsnot Ilecessaryto determine whether or not a prayer for a binding instruction is w,aived by the defendant for the reasons above stated, and we decline to express any opinion on the question. The assignment, is unavailing, for the reason that the bill of exceptions before, us does not affirmatiyeJy show that it contains all the evidence on the trial of thecj.ttise, and without that we cannot say that the court erred in its ruling. It is insisted that the court erred in refusing to permit the plaintiff in error to prove that in coupling, the cars it was both unusual and unnecessary, and especially dangerous, for a person to attempt to make the coupling by placing his arm between the deadwoods, and that the uatialand proper way to IIl,ake it was to lift the link by reaching over and above, or under and around, them. The witness Rem,. was an expert, and waS called to testify as such. Ilia knowledge and experience fairlyen.titled him to that position, if the subject on which he was called to testify was a proper one for expert teEttimony. It i8 no objection that the expert is asked a question involving the one to be decided by: the jury. It is upon sub-
ATCHIBON,T. & 8. F. R. CO. V. MYERS.
797
jects requiring special knowledge or experience, on which the jury are not as well able to judge for themselves as is the witness, that an expert is permitted to testify. Evidence of this character is most frequently given upon matters requiring medical skill or scientific knowledge, but it is by no means limited to that class of subjects. It is competent upon the question of the yalue of land (Bearss v. Copley, 10 N. Y. 93); or in regard to the value of a particular breed of horses (Harris v. Railroad Co., 36 N. Y. Super. Ct. 373); or upon the value of professional services (Jackson v. Railroad Co., 2 Thomp. & C. 653); or on questions involving nautical skill (Moore v. Westervelt, 9 Bosw. 558); or on the necessity of a jettison (Price v. Hartshorn, 44 N. Y. 94); or in regard to the proper and usual way of removing paint (First Oongregational Church v. Holyoke Mut. Fire Ins. Co., 158 Mass. 475,33 N. E. 572); or to show that it was good seamanship and prudent, under the circumstances, to have a vessel towed (Insurance Co. v. Smith, 124 U. S. 405, 8 Sup. Ct. 534); or to show the usual manner of making the coupling of cars (Hamilton v. Railway Co., 36 Iowa, 36, on page 37; Railway Co. v. Husson, 101 Pa. St. 1; Railway Co. v. Johnson, 38 Ga. 409, 435; O'Malley v. Railway Co., 43 Minn. 289, 45 N. W.440; Simms v. Railway Co., 26 S. O. 490, 2 S. E. 486; Railroad Co. v. Smith, 22 Ohio St. 227; Crutchfield v. Railway Co., 78 N. C. 300; Doyle v. Railway Co. [Minn.] 43 N. W. 787). But conceding that it was competent for the witness to have testified in regard to the usual, or the usual and proper, way of making a coupling with a car having deadwoods, still we do not think any available error was committed in rejecting the offered testimony. The offer must be treated as an entirety, and if any part of it was inadmissible the court committed no error in rejecting the entire offer. The court was under no obligation to separate that which was admissible from that which was inadmissible. It was not competent for the witness to testify that it was unnecessary, and especially dangerous, to make the coupling in the manner in which it was made. When the jury were informed in regard to the manner in which the coupling in question was made, and also in regard to the usual and proper way in which to make it, they could determine as well as the expert whether or not the method adopted was unnecessary, and especially dangerous. It was a question for the jury alone to determine, when the circumstances attending the coupling, and the usual manner of making it, were in evidence, whether or not the defendant in error adopted a method of coupling which was unnecessary, and especially dangerous. It is the duty of the court to control and direct the argument of counsel in the interest of justice, and whenever counsel, especially in the closing argument, overpass the limits of fair debate, either by stating as facts matters not in evidence, or by making unwalTanted charges against parties or witnesses, to the manifest perversion of justice, the court ought unhesitatingly to interfere, and see to it that the guilty party takes no advantage from his wrong. When party who is injured by the wrong invokes the protection of the court by an objection, it will not do for the court to remain silent.
the when called upon,' ullij;if an made withoute$':cllge, the it be erased from .the minds of the jury, atJ tl'ie time, :by a admonitHm from the court. Manifestly, ,this court down no netlni'te,rule on thesubjcyt. It will 'not in any case bepresl1nied th'at 'th'ediscretion over this.: SUbject com· mitted tothe#1alC9urt'ha,s"beEm" Upon a careful con· to say tlilifthe court abuselHts discretion Ip. 'refusing to interp6seinconsequence of the of counsel 'appearing in tliel'ecord. " ' . I". . ,' .T(!>uching. th'e compapyls' duty 'to' 'furnish its with cars "fit for use and in proper reIlair" the, (:o\1rt said: 'JUty.l:
'leavtbg
ttiatter'of :nrlsconduet,.withtheoft'ending patty'and bound
J
, I
,j"Itis thel'lutY"6f the defendant to furnish.its employl:\s with' proper machinery .or instrumentalities for their use in the work asSigned them, and to :sooto it they are kept, in a reasonably safe condItion" or in reasonable 'And an in the <lischarge of his ,<l,uty, is injured negligent ot. the company to perform this duty, 'i't.ls liable." , I. . .' ',' ,
to an a'rowing out of <iefective machinery". is teste(i, are well settled by those. decisions. NeitPer individuals nor.. are 'bound, the 'absolute safety ()f the machinery or :mechanical appliances which they provide for the Use of their . .Nor are they bound to supply the best and safest OJ; newest of those applithe the sP,tety of thus employed. They are, however, bound ,to use all reasonable care and prudence for the safety of thpse'in' their sei-'Y'ice, by them with machinery reasonably :safe and, suitablefol' the' USe of the tatter. It the emploYer' or master fails in this duty of precaution and care, :heis responsible fC1I' mny injury which may happen tbrough ,n: of mach1nery,· which was; Or, ought to have be¢n,known.to.!lim, and ,was.upJqlOwn But if the. ernploy{i knew of 'U!e defect itltbe'machinery from which the'injury hapo and yetretnainedtit the service; and continued ,to Use'the machinery, without giving. any notice 'tlhereof to :tlle employer,' ;must be deemed to to be:lliP:l,>re;l;letlded from such us,e, and to nq" 1
duty .b.im to exercise ordinary and.,reasonable having regard tQ the llazards.Qf the service, to furnish his with, reasonably·safe,. IlIlPUances, machinery, tools, and .working p}aces,allda!lil0 to eXeL'ciseQrdinarya;nd reasonable care times 1;0 keep in a reasonaply safe, condition of repair. cUe i$under noabsoluteobligatioq1(l furnish safe instl'1lmentalities ,a.nd '!Vorking, places, ,nor is his ,duty an absolute ,one to keep them in condition ofreplliir.· He i$ not an insurer of their safety. Re·, ferring, to the cases of y.. RroJ'way Co., 100 U.S. 213, 217; Rail· J,'Qad CO!,v. Herbert, 116R,S. 6 Sup. ct. 5.90; Kane v. <:8.a;ilway Co., p.S. 9l, 94, 9 Sup. Ct. 16; Jones v. Railroad Co., ,,128 lh S! 443, 9"Sup. Ct. H8,-thersupreme court, in Railroad Co; v. ¥cDade, 135 So 554, 570,'10 Sup, Ct. 1044, say: ,I, "TJ1.e general principles ,of law by whfuh· the l1abilityofan employer for
r,I1he
"
,
The rule of, duty ,embodied in the charge will: be found stated in ,substantially the formcemployed by/the court in numerous decisions, and while, asanabstractproposiiion, in cases to which: it is ap-
ATCHISON, T. & S. F. R. CO. V. MYERS.
799
plicable; it is not erroneous, it is a form of expression from which a jury might well understand that the employer was bound in every case to furnish safe machinerJ to the employe. The instruction, however, does not state the law applicable to the facts of the present case correctly, and hence it is misleading and erroneous. The car which occasioned the injury having been received by the plaintiff in error, in the regular coui'seof business, from another company, for transportation over its lines, the receiving company owed to its employes the duty of making proper inspection, and giving notice of its defects, if any were found. Railroad Co. v. McMullen, 117 Iud. 439, 20 N. E. 287. If the car came to it with defects visible, or discoverable by ordinary inspection, its duty was either to return the car to the company from which it came, or to repair it sufficiently to make it reasonably safe. The inspection which the company isre· quired to make of a foreign car tendered to it by· another company for transportation over its lines is not merely a formal one, but it should be made with reasonable diligence, so that its employes will not be exposed to perils which reasonable care would have guarded against The company receiving a foreign car can be held responsible, by an employe who sustains an injllry from its defects, only for failure to furnish a competent inspector, or for failure of the inspector to exercise due care in making the inspection. It is not, however, to be held responsible for hidden defects, which could not be discovered by such an inspection as the exigencies of traffic will permit. Railway Co. v. Fry, 131 Ind. 319, 28 N. E. 989. The duty of the plaintiff in error, therefore, is not that of furnishing proper mao chinery and instrumentalities for service, and seeing that the same are kept in safe repair, but its duty is one of inspection; and this duty is performed by the employment of sufficient competent and suitable inspectors, who are to act under proper instructions, rules, and superintendence. If it has furnished such inspectors, and if a proper inspection is made, and due notice of defects have been given to the employe, its measure of duty is satisfied. It is held by courts of high authority that it has performed its whole duty in respect to foreign cars when it has furnished sufficient competent and suitable inspectors, acting under proper instructions, rules, and superintendence, and that such inspectors must be deemed fellow servants engaged in a common employment with brakemen and switchmen. :l\fackin v. Railroad Co., 135 Mass. 201; Keith v. Railroad Co., 140 Mass. 175, 3 N. E. 28. The true rule, however, is stated iI! the case of Railroad Co. v. Herbert, 116 U. S. 642, 652, 6 Sup. Ct. 590. It is there said: "If no one was appointed by the company to look after the condition of the cars, and to see that the machinery and appliances used to move and to stop them' were kept in good repair and working order, its liability for the injuries would not be the subject of contention. Its negligence in that case would have been, in the highest degree, culpable. If, however, one was appointed by it, charged with that duty, and the injuries resulted from his negligence in its performance, the company is liable. He was, so far as that duty is concerned, the representative of the company. His negligence was its negligence, and imposed· a liability upon it."
800
FEDERAL REPORTEIi,
vol. 63. instruct
Atthe proper time the plaintiff in error asked the court the jury as follows
, "The plaintiff was emp19yed by the defendant as a switchman in its railroad yards 'at Streator, and as i sUch it became and was his duty to couple and the cars handJ,e4< by t,he defendant. there. By accepting such employman.t,: assumed its natural and usual. .and hazards, an.d, if you believe from the. evidence thilJ case that .the injUry which the plaintiff received! wits due to the natural and usual hazards and risks of his employment there ag 'lL 'switchman, thet!. the plaintiff ciLnnot recover in this action, and .shoJild be fort,he defendant." ,
The' eOl,1t1;' refused this instruction, and an e;x:ception was duly rese'rVed, and thisfuling has been properly assigned here. The evidence'showed, thatttie defendant in error, was employed as a switc,hmanln the yards' of the plaintiff in' error at Streator at and aJ).dtnat it was his duty to couple and uncouple the cRrshaJillled byJt¥isuch yard. Accordihg to the usual course of knq#iJ,to the defendant in, error, and notorious, the plaititm in error wa'Sin the habit of receiving many foreign cars daily for transportatioti:'Over its lines. He,well knew that it was the Practii:!e of the railroM company to cause all such cars to be offered, and if they were found to be defective they to the carrier from which they came. The plaintiff'. in error was therefore entitled to have the court instruct the' jl1ryin regard to the rights and responsibilities of the parties, if they 'believed that the injury was due to the natural and usual hazardgand risks of the service. The cases in support of the doctrine tbatanemploye assumes all the natural and usual risks and hazar'dsof' the service wbich he undertakes are so numerous, and the principle is so elementary, that we will not incumber the opinion witb'citations. Some other questions have.been presente!l by the assignment of errors, andal'gued by counsel; but as the case will have to be reversed for the errors above pointed out, and as the alleged errors may not Occur upon another, trial, we do not deem it necessary to express anyopbiion upon them. The judgment of the 'court below is reversed,at the costs of the defendant in error, and the case remanded to the court below, with instructions to grant a new trial UNION PAC. RY. CO. v. HARRIS.
(CirCUit Court of Appeals, Eighth Circuit. No. 489.
October 8, 1894.)
1.
ApPEAt,---OBJECTION!l NOT RAISED BELOW. The objectl,on that an action, 01' any material
issue therein raised by the pleadings, is cognizable at law, instead of in equity, or vice versa, is waived by a failure to interpose it in apt time in the court of origInal jurisdiction.
2. RELEASE-EVIDENCE OF FltAUDULENT PltOCUREMENT.
A ll.nding hi an action for person.al injuries that a release was procured by fraud will not be disturbed on error, where it appears that plaintiff was unconscious for many hours after the accident, and, because of the severity of the pain, was kept under narcotics for two