This was an action brought by James Callaghan against the Union Pacific Railway Company in the circuit court of the United States for the district of Colorado, to recover damages for injuries received by him through the alleged negligence of defendant. The evidence tended to establish these facts: On August 18, 1890, a repair train operated by defendant, consisting of five flat cars, loaded with timber to be used in repairing bridges, three box cars, and a coboose, in running from Trinidad to Trinchera went through a defective bridge, and Callaghan, who was riding on the train, was injured.
Heavy storms had prevailed during the preceding week, causing extensive washouts and damages to the roadbed and bridges, so that none but repair trains had passed over the line between Trinidad and Trinchera for three days.
Callaghan was a section foreman on a branch railroad from Trinidad to Sopris, and some time on August 17th he received orders from the superintendent of the railway company to take all the men in his section, and assist in repairing the line between Trinidad and Trinchera, and accordingly went to Trinidad, where he was joined by some other section foremen with their crews, all being under one De Remer, a contractor [161 U.S. 91, 92] in the employment of the company, who had been called in to assist in repairing the road, but who had no control over the management of the train, which was in charge of a conductor with an engineer and fireman.
The train left Trinidad about 5 p. m., Sunday, the 17th, pursuant to orders received from the superintendent, then at Trinchera, and who had that day examined the bridge which subsequently fell, but, so far as appeared, gave no directions or warning to De Remer or the Trainmen in respect of its condition. The train proceeded slowly during the night, De Remer and a track walker going in front with a lantern, and before morning they found one bridge washed out and another rendered dangerous by floods, and repaired them. The bridge where the accident occurred was about half a mile north of Trinchera, and three miles south of Adair, another station on the road. The approaches at each end of it had been washed away for over 15 or 20 feet, so that it was unsafe. The foreman of that section discovered its condition on the 17th, and caused the usual danger signal, a red flag, to be placed along the road between the rails at about 700 feet north of the bridge, and its condition was known to the road master as well as to the superintendent before the train left Trinidad.
When the train reached Adair it was running about 15 miles an hour. The section foreman was there, and signaled the train to stop for the purpose of telling them about the bridge, and, if it had stopped, would have done so. The engineer saw his signal, and commenced to stop, and had slowed up to about four miles an hour, when the conductor signaled him to go ahead. The train then went on without giving the section foreman any opportunity to give information concerning the danger. The bridge could be seen for about 900 feet north on the road, but the engineer apparently neither saw its condition nor the red flag, but drove his train upon it, and the car upon which Callaghan was riding went through.
At the conclusion of defendant's evidence, except reading the rules, defendant asked the court to instruct the jury that [161 U.S. 91, 93] there was no evidence sufficient to warrant a verdict for plaintiff, which request was denied, and defendant excepted. Defendant then introduced in evidence the company's rule 227, which read as follows:
Thereupon plaintiff offered and introduced evidence to show that there was a conductor on the train. Defendant then asked the court to give to the jury the following instructions:
The record then states: 'But the court refused to give each and every of said instructions, to which ruling of the court, the defendant, by its counsel, then and there duly excepted.' The court thereupon charged the jury at large upon the whole case. No exception was taken to any part of the charge. The jury found for plaintiff, judgment was entered on the verdict, the cause taken on error to the circuit court of appeals for the Eighth circuit, and the judgment affirmed. 6 C. C. A. 205, 56 Fed. 988. This writ of error was then allowed, and a supersedeas bond given and approved, in which no penal sum was named. A motion to dismiss or affirm was submitted. Callaghan subsequently died, and the cause was revived in the name of Anna Callaghan, administratrix, etc.
C. S. Thomas and W. H. Bryant, for defendant in error. [161 U.S. 91, 95] John F. Dillon and John M. Thurston, for plaintiff in error.
Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the 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 S. 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.