Missouri, K. & T. Ry. Co. v. Wilhoit

Citations

• 160 F. 440
• 87 C.C.A. 401
• 1908 U.S. App. LEXIS 4208

Syllabus

<p>1. Courts — Appeal and Error — Right to Review as Affected by Motion for New Trial — Court Rules.</p> <p>Where an appeal to the Court of Appeals in the Indian Territory was perfected, and rulings to which exceptions were properly reserved upon the trial of the case were assigned as error, in conformity with rule S of the rules of that court then in force, which declared, inter alia, that such rulings would be considered “whether * * * set out especially in the motion for a new trial or not.” Ind. T. Ann. St. 1899, p. 937, It was error for that court to decline to consider them on the ground that they had not been set out with sufficient detail or precision in the motion for a new trial in the trial court</p> <p>2. Appeal and Error. — Adherence to Theory Pursued in Trial Court.</p> <p>When the parties, with the assent of the court, unite in trying a case on the theory that a particular matter is within the issues, they will not be permitted to depart therefrom when the case is brought before an appellate court for review.</p> <p>3. Master and Servant — Negligence—Nonoocurrence of Prior Accident no Bar to Liability.</p> <p>In an action to recover for injuries produced by a hand car upon which the plaintiff was riding, which was alleged to have been negligently permitted by the defendant to remain out of repair for a considerable time, by reason of which it jumped the track a.nd produced the injuries in question, the fact that it had not jumped the track before, and that no other accident had happened to it, is not an answer to the charge of negligence or a bar to liability.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 84, Master and Servant, § 210.]</p> <p>4. NEGLIGENCE.CONTRIBUTORY NEGLIGENCE- -BURDEN OP PROOF — INSTRUCTION.</p> <p>In an action for personal injuries where there is a defensive plea of contributory negligence, an instruction that the defendant has the burden of proving the plea, and is required to establish it by a preponderance of th