Page:United States Reports, Volume 209.djvu/301

 McCABE & STEEN CO. . WILSON. 209 U.S. Sta_mt of the Ce. McCABE & STEEN CONSTRUC'rION COMPANY WILSON. ERROR 0 THE SUPREME COURT OF THE TERRITORY OF OKLAHOMA. No. 1M. Ared Msrh ;, 6, 19.--Decided April 6, 1905. Delendant who introduc testimony after the demurrer to plaintiff's evi- dence has been overruled waives any errol to the ruling. Where the canse o! action is ngainst the members of a copartnership who Jerwards incorporate their bnsine, thenselves taking practically all the gock and entinuing without changing their relations with employga, the fact that tha suit is commenced against the corporation was held under the'eircumstancas of this case, and in view.of the fact that no testimony wa offered, to be within 'te provi-lons of the Oklahoma atute, 146, art. 8, c. 66, Wileoh'S Ann. Star., requiring the court to disregard, and not reverse for, defeete of pleading or proceedings not affecting the substan- ti ight of the pties. Where several instructions are raked and refnsed, excoptisns must be taken separately and not as an entirety. One employed as a trnan n an engine of a construction train held, under the circumstances of this case, not to be the fellow-servant of the foreman ol the gang constructing the bridge which fell end caused the accident. It i the duty of the employer to provide a suitable and safe place for the employgz to work and they are not charged with any responsibility in regard '.hereto, and while the employer is relieved if he does everything that prudence re, quires in that respect, it is largely a question o.fact and this court will not, in the absence of convincing testimony, set azide the verdict of a jury approved as was the verdict in this cme by the trial and; Supreme courts of the Territory, epeeially where the accident was the result of recurring conditions. A fireman, who, under the cirenmstan of this case, r,mi;s at his regular  where his ordinary duty calls him, is not guilty of contributory neg- ligence because he do not avail himself of pennion to occupy a different and, perhaps, afer place. 17 Oklahoma, 355, affirmed. O June 9, 1902, Wilson, the defendant in error, was in- jmmod by the giving way of a railroad bridge acrom the Cana- dian River in the Territory of Oklahoma. The bridge was on a new line of railroad, which wa being constructed from Ok-

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