Smith v. Hopkins

JENKINS, Circuit Judge. The first, second, and third assignments of error are to the effect that the judgment is contrary to law; that it is contrary to the evidence; that it is contrary to the preponderance of evidence. These assignments are unavailing under the rule (rule 11; 31 C. C. A. cxlvi, 90 Fed. cxlvi) that “an assignment of errors shall set out separately and particularly each error asserted and intended to be urged.” The first assignment does not specify wherein the judgment was contrary to law, nor do the second and third assignments specify— assuming that we may review the evidence — wherein the judgment was contrary to the evidence, or to the preponderance of the evidence. The sixth assignment, that the court erred in directing the jury to find the issues for the defendant, cannot be considered, because there was no exception to the ruling of the court in making such direction. The seventh assignment, that the court erred in refusing to grant a new trial, is a matter with which this court has nothing to do. Van Stone v. Stillwell & Bierce Manufacturing Co., 142 U. S. 128, 12 Sup. Ct. 181, 35 L. Ed. 961. The eighth assignment, that the court erred in rendering judgment, is alike unavailing, being too general for review. The fourth assignment is to the effect that the court improperly •excluded certain testimony, which includes nearly four printed pages of questions propounded to the witnesses upon the trial. This assignment, within our ruling in Atchison, Topeka & Santa Fé R. Co. v. Mulligan, 14 C. C. A. 547, 67 Fed. 569, is not in conformity with the rule requiring that an assignment shall set out separately and particularly each error asserted. The writer dissented from the ruling in that particular, but it is the rule of this court, to be adhered to [924] so long as the ruling stands. It is further to be said that the assignment does not comply with rule n, which requires that, when the evidence rejected is oral testimony, a written statement of the substance of what the witness was expected to testify shall be filed and brought to the attention of the court before the retirement of the jury. Grape Creek Coal Co. v. Farmers’ Loan & Trust Co., 12 C. C. A. 350, 63 Fed. 891; United States ex rel. Coquard v. Indian-Graves Drainage District, 29 C. C. A. 578, 85 Fed. 928. We do not hesitate to enforce the rule in this particular case, because many of the questions ruled out were subsequently allowed and the testimony admitted. The fifth assignment is to the effect that the court gave improper verbal instructions to the jury, and that is followed by two printed pages of remarks by the court during the progress of the trial and at different stages of it; some of them declaring reasons for certain-rulings, and others regulating the conduct of the trial. The assignment embraces many remarks to which no exceptions were taken at the trial, and as to which no complaint can now be made. The assignment is, moreover, ineffectual because whatever remarks the court may have made to the jury are of no moment, since the cause was withdrawn from the jury and a verdict directed without objection. This covers substantially the case presented, upon which we are constrained to affirm the judgment. We are, however, unwilling so to do without saying that in our opinion the result reached and the direction for a verdict were entirely right. This pile of railway ties was upon the right of way of the railroad company. It was upon no part of the pleasure grounds, if the unimproved grounds south of the river may be so designated. The company owed no duty to the plaintiff’s intestate with respect to the manner in which Ihose ties should be piled. He had no business upon them. Assuming that there was implied invitation to the public to go upon the unimproved land south of the river, the receiver owed no duty to the public to make a pleasure ground of the right of way. The ties were not within, but beyond, the approach to the land, and, in extending the walk beyond the approach and upon the right of way, the plaintiff’s intestate was at most a mere licensee, and bound to take things as he found them. The receiver, owed him no duty except to refrain from aggressive injury. The boy was 18 years of age, and of understanding mind. The cases to which we are referred with respect to dangerous appliances in public places likely to attract children of tender age, of which the turntable case, Railroad Company v. Stout, 17 Wall. 657, 21 L. Ed. 745, is an example, can have no application. The judgment is