Union Pacific Railway Company v. Callaghan/Opinion of the Court

We should not dismiss this writ of error on account of the defective character of the bond, but allow a proper bond to be filed, if necessary, which, in this instance, it is not, as the motion to affirm must be sustained.

It is settled that an exception to the refusal of the trial court to instruct the jury to find for the defendant is waived if made by defendant without resting his case. The question goes to the sufficiency of the evidence, and that is, of course, of the entire evidence. Railroad Co. v. Hawthorne, 144 U.S. 202, 206, 12 Sup. Ct. 591. After defendant's motion for an instruction in its favor was denied, it put in evidence its rule 227, which manifestly might have had an important bearing. The motion was not renewed, and we think the action of the court cannot be assigned for error.

Again, it is firmly established that where propositions submitted to a jury are excepted to in mass, the exception will be overruled provided any of the propositions be correct; and where a general exception is taken to the refusal of a series of instructions it will not be considered if any one of the propositions is unsound. Valley Co. v. Pace, 158 U.S. 36, 15 Sup. Ct. 743. It was contended by defendant that the accident was the result of the engineer's negligence alone, and that, therefore, plaintiff could not recover. In the light of the evidence, the first instruction requested by defendant was properly refused, and, without considering the others, the exception as taken to the ruling of the court must fail. And no exception was saved to any of the instructions given by the court on the whole case.

Judgment affirmed.