Page:United States Reports, Volume 209.djvu/302

 .276 OCTOBER TER, 1907 defendant, now plntff in r, was a subcontractor and constructing a port/on d the rsflro, '.including therein t crong of the Cmi,m River; that W-dson was a locomotive fireman employed by the defendant. The circumstances of the 'injury were stated in the petition sad mgligee on the par of the defendant w averted. A trial resulted in a verdict 'and judgment in favor of the plaintiff_for $5,500. This judg- ment was stfnned by the Supreme Court of the Territory (17 Oklahoma, 355), and thenee brought here by writ of error. Mr. Arthur (. Mosd, with whom Mr. Lou/z B. was on the brief, for plaintiff in error. Mr. Jamez R. Keaton, with whom Mr. ffolm W. Shattel, Mr. Frank Walls and Mr. Joht H. Wr/ght were on the brief, for defendant in error. Ma. Jusc Bazw, after rnsling the foregoing state- ment, delivered the opinion of the court. When the plaintiff rested the court overruled a demurrer to the evidence. This ruling, however, csamot avail the de- fendant, whatever the defect then in the case, for thcrcs. fter it proceeded to introduce testimony in its own behalf, and this waived any supposed error. Accident Insurance Company v. Crandal, 120 U.S. 529, 530; Robertson v. Ptrkins, 129 U. S. 233, 236; Bogk v. Gasserf, 149 U.S. 17, 23; Campbell v. Hawr- h///, 155 U.S. 610. The petition averred that one Pratt was defendant's super- intendent of construction and one Fallahey foreman of the gang engaged in work on the bridge, and that the plaintiff was employed by the defendant through its general superintend- ent. The answer, in addition to certain special defenses, wa

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