United S. S. Co. v. Barber

DONAHUE, Circuit Judge

(after stating the facts as above). It is insisted upon the part of the plaintiff in error that the verdict and judgment are not sustained by sufficient evidence, and that for this reason the court erred in overruling defendant’s motion, renewed at the close of all the evidence, for' a directed verdict. This question does not involve the weight of the evidence. If there was any substantial evidence tending to prove that the defendant was guilty of all or either of the specifications of negligence alleged in the petition, and that such negligence was the proximate cause of defendant’s injury, then the motion for a directed verdict was properly overruled.

The testimony of the plaintiff himself fully supports the verdict and judgment. Its truth or falsity was a question for the jury. In this connection it is urged on behalf of the plaintiff in error that the testimony of the plaintiff, in all matters material to a recovery, is specifically contradicted by a number of witnesses who had at least equal, if not better, opportunity than plaintiff to know the facts. This has no application to the sufficiency of the evidence, but, on the contrary, involves the question of the weight of the evidence, and for that reason cannot be considered or determined by this court. Goodwin et al. v. U. S., 2 F. (2d) 200 (C. C. A. 6).

It is further contended that the court erred in its charge to the jury in reference to the alleged failure of the defendant to instruct the plaintiff as to the manner and method of performing his duties and its failure to apprise him of all the dangers or hazards, if any there were, incident to the work he was employed to do. No exceptions were taken to the charge in this respect, and for that reason this assignment of error must be disregarded. Substantially the same question is presented, however, in the defendant’s request to charge, in effect, that the plaintiff could not recover upon any assignment of negligence, other than leaky and defective valves. This request was refused and exceptions noted.

The defendant, without objection to the sufficiency of the allegations of negligence in the petition, denied specifically each and every assignment of negligence contained therein. Upon the issue so joined, evidence offered by both plaintiff and defendant was properly admitted, tending to prove the plaintiff’s experience or lack of experience, his knowledge or lack of knowledge of the dangers incident to his employment, whether he had been fully advised by the plaintiff in reference to these dangers, if any, and the manner and method by which he might perform these duties with comparative safety to himself. It was not until after all this evidence had been offered and admitted without objection, and the court had charged the jury in reference to the matters to which this evidence was directed, that the defendant by this request asked the court to withdraw all assignments o f negligence from the jury, except the question of defective valves. The objection to the sufficiency of these allegations of negligence was not timely made.

If there was any merit in the objections of the defendant to the sufficiency of the petition as to these other specifications of negligence, made for the first time after all the evidence had been introduced and the court had charged the jury, it would have been the duty of the court to permit the plaintiff to amend his petition to conform to the proofs. R. S. § 954 (Comp. St. § 1591). In view of the fact that defendant had accepted the issues as tendered by the petition, this was unnecessary, and certainly the failure of the court to do so would not be prejudicial error. Section 269, Judicial Code. (Comp. St. § 1246).

The judgment is affirmed, with costs, and cause remanded.