Dunlap v. Northeastern Railroad

after stating the case, as above reported, delivered the opinion.of the court.

The Circuit Court erred in not submitting the question of contributory negligence to the jury, as the' conclusion did not follow;, as matter of law, that no recovery could be had upon any view which could be properly taken of the facts the evidence tended to establish. Kane v. Northern Central Railway, 1 28 U. S. 91; Jones v. East Tennessee, Virginia & Georgia Railroad Co., 128 U. S. 443.

It is urged that the exceptions were not properly saved, and therefore that they should be disregarded. There is some obscurity in the record upon this subject, but upon the whole we think that enough appears to enable us to pass upon the question presented. . The bill of exceptions shows that certain instructions, numbered 1 and 2, were requested by plaintiff and refused, and certain instructions, numbered 3 and 4, objectionable or adverse to plaintiff, were given, and it is stated by the court that “the plaintiff’s counsel presented his request in writing before the charge of the court began. The court instructed the jury to .find for the .defendant, without notice to *653 plaintiff’s counsel that the requests would- not be given, and there was no opportunity for counsel to except to the failure of the court to charge as requested until the instructions were given to the jury. The exceptions, therefore, contained - in Nos. 1, 2, 3 and 4 were not taken or noted during the trial.” But the bill-of exceptions also'states: “Y. The court instructed the jury to return á verdict for the defendant. YI. The jury returned a verdict in accordance with said instructions, and judgment was thereupon entered up in behalf of defendant in pursuance of said instructions; and to said instructions, verdict and judgment, the plaintiff, by his counsel, excepted and now excepts, during the term at which said case was tried and while said term is still in session, and assigns the same as error, and prays the court .to sign and certify this exception.”

We understand, from this language, taken together, that the general instruction of the court to find for the defendant was excepted to at the proper time; and while greater accuracy of expression-should have been used, we are not inclined by too technical a construction, to preclude ourselves from correcting'the error we hold was committed. The judgment is '

Reversed cmd the ccmse remanded, with directions to grant a new trial.