McCabe & Steen Construction Co. v. Wilson

Citations

• 209 U.S. 275
• 28 S. Ct. 558
• 52 L. Ed. 788
• 1908 U.S. LEXIS 1702

Syllabus

<p>Defendant who introduces testimony after the demurrer to plaintiff’s evidence has been overruled waives any error to the ruling.</p> <p>Where the cause of action is against the. members of a copartnership who afterwards incorporate. their business, themselves taking practically all the stock and continuing without changing their relations with employés, the fact that the. suit is commenced against the corporation was held under the circumstances of this case, and in view-of the fact that no testimony was offered, to be within the provisions of the Oklahoma statute, 146, art. 8, c. 66, Wilson’s Anri. Stat., requiring the court to disregard, and not reverse for, defects of pleading or proceedings not affeeting the substantial rights of the parties.</p> <p>Where several instructions aré asked and refused, exceptions must be taken separately and not as an entirety.</p> <p>One employed as a fireman on an engine of a construction train held, under the circumstances of this case, not to be the fellow-servant of the foreman of the gang constructing the bridge which fell and caused the accident.</p> <p>It is the duty of the employer to provide a suitable and safe place for the employés to work and they are not charged with any responsibility in regard thereto, and while the employer is relieved if he does everything that prudence requires in that respect, it is largely a question olMact and ■this court will not, in the absence of convincing testimony, set aside the verdict of a jury approved as was the verdict in this case by the trial and-Supreme courts of the Territory, especially where the accident was the result of recurring conditions.</p> <p>A fireman, who, under the circumstances of this case, remains at his regular post where his ordinary duty calls him, is not guilty of contributory negligence because he does not avail himself of permission to occupy a different and, perhaps, safer place.</p>