ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF TEXAS.
MR. JUSTICE GRAY, after stating the case, delivered the opinion of the court.
The rulings as to the allegations and proof upon the subject of exemplary damages became immaterial by the subsequent instruction of the court withdrawing from the consideration of the jury the claim of such damages, and by the return of a verdict for actual damages only. Pennsylvania Co. v. Roy, 102 U.S. 451; New York, Lake Erie & Western Railroad v. Madison, 123 U.S. 524.
By the settled law of this court, not controverted at the bar, contributory negligence on the part of the plaintiff need not
be negatived or disproved by him, but the burden of proving it is upon the defendant. Inland & Seaboard Co. v. Tolson, 139 U.S. 551, 557. The omission of the court to instruct the jury upon the subject of the plaintiff's contributory negligence is not open to exception, because the bill of exceptions does not show that the defendant requested any instruction upon that subject. In England, it is misdirection, and not non-direction, which is the subject of a bill of a bill of exceptions. Anderson v. Fitzgerald, 4 H.L. Cas. 484, 499. In this country, the rule is somewhat more liberal; and the not giving an instruction upon a point in issue may be excepted to, if one was requested, but not otherwise. In a very early case, Chief Justice Marshall said: "There can be no doubt of the right of a party to require the opinion of the court on any point of law which is pertinent to the issue, nor that the refusal of the court to give such opinion furnishes cause for an exception." Smith v. Carrington, 4 Cranch, 62, 71. As afterwards more fully stated by Mr. Justice Story, "it is no ground of reversal that the court below omitted to give directions to the jury upon any points of law which might arise in the cause, where it was not requested by either party at the trial. It is sufficient for us that the court has given no erroneous directions. If either party deems any point presented by the evidence to be omitted in the charge, it is competent for such party to require an opinion from the court upon that point. If he does not, it is a waiver of it." Pennock v. Dialogue, 2 Pet. 1, 15. See also Express Co. v. Kountze, 8 Wall. 342, 353, 354; Shutte v. Thompson, 15 Wall. 151, 164. A request for instructions, being necessary to entitle the excepting party to avail himself of an omission to instruct, cannot be presumed, but must affirmatively appear in the bill of exceptions.
The testimony of one of the men who were working with the plaintiff in unloading the car at the time of the injury, that they were busy at their work and did not think of the approach of the engine until it struck the car, related to facts which might naturally be within his knowledge, and be apparent from the behavior of the workmen; and was competent, though perhaps not important, evidence upon the issue
of contributory negligence presented by the defendant's answer.
The testimony as to the circumstances of the continuance of the plaintiff in the employ of the iron works, after being injured, was offered only "to show the character of the work performed by the plaintiff, both before and after the accident;" and was competent evidence upon the question how far his capacity of earning a livelihood had been impaired by his injuries. Vicksburg &c. Railroad v. Putnam, 118 U.S. 545, 554; Richmond & Danville Railroad v. Elliott, 149 U.S. 266, 268.
The writ of error appears to this court to have had no plausible ground to support it, and to have been sued out merely for delay. The motion of the defendant in error is therefore granted, and the
Judgment affirmed, with interest, and ten per ...