John M. & Joseph P. Nolan, for plaintiff in error. Before LACOMBE, COXE, and NOYES, Circuit Judges. COXE, Circuit Judge. The plaintiff below had been a longshoreman in the employ of the defendant for nine years prior to November 13, 1906. On that day he was, with others, engaged in receiving and stowing cargo in the lower hold of the steamship La Touraine and was injured by being struck by the contents of a case which was being lowered into the hold. This case was about 16 feet in length and from a foot to a foot and a half square and contained brass rods "as thick as a man's finger." When the case had been lowered part way the end broke, or became loose, and the rods fell out and struck the plaintiff, who was in a stooping position, upon the back and left hip causing serious injury. The accident happened because back-lashes were not used. That the omission to use them was negligence is not seriously disputed but the defendant contends that the fault was that of a fellow servant. The plaintiff insists, on the contrary, that the fault was directly attributable to a person, or persons, whose sole or principal duty was that of superintendence. Louis Johnson was defendant's foreman of longshoremen, hiring and discharging many of the men, and Connors was assistant foreman. There was testimony that but for the orders of these men, or one of them, the case would have been properly backlashed before being lowered into the hold and that the anxiety of the foreman to get the cargo in quickly induced him to order this case sent down without being properly safeguarded. The court submitted to the jury the question whether this particular case required back-lashing, and, if so, whether the failure to back-lash was due to the negligence of Johnson or Connors. If they found that it was not, they were instructed that the defendant was entitled to a verdict. The question of negligence was clearly for the jury and the instructions of the court were as favorable to the defendant as the facts warranted. It was argued that no proof was made of service of notice of injury required by the state liability act (Laws 1902, p. 1748, c. 600). The complaint alleges the service, the answer admits it, and the third paragraph of the bill of exceptions is as follows: "Defendant's counsel admits that the defendant was served with a notice of intention to sue under the employer's liability act." How there could be any stronger proof than this we are at a loss to discover. The denial by the Circuit Court of the motion to set aside the verdict and for a new trial presents no question which this court can review. The judgment is affirmed with costs. GARRETT v. POPE MOTOR CAR CO. April 14, 1909.) (Circuit Court of Appeals, Sixth Circuit. No. 1,893. 1. APPEAL AND ERROR ( 728*)-ASSIGNMENTS OF ERROR-SUFFICIENCY-RULINGS ON EVIDENCE. An assignment that the court erred in ruling out evidence offered on behalf of plaintiff over plaintiff's exceptions is fatally defective for failure to quote the full substance of the evidence ruled out, as required by Circuit Court of Appeals rule 11 (150 Fed. xxvii, 79 C. C. A. xxvii) and will not be reviewed. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 3012; Dec. Dig. 728.*] 2. APPEAL And Error (§ 730*)—ASSIGNMENTS OF ERROR-RULINGS ON INSTRUC TIONS. Assignments that the court erred in its charge to the jury and in refusing to charge as requested are fatally defective for failure to state in what particular the court erred in its charge and what particular request the court erred in refusing, under Circuit Court of Appeals rule 11 (150 Fed. xxvii, 79 C. C. A. xxvii), providing that, if error is alleged to the court's charge, the assignments shall set out the part referred to totidem verbis, whether it be in instructions given or refused. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 3015; Dec. Dig. § 730.*] In Error to the Circuit Court of the United States for the Northern District of Ohio. Before LURTON and SEVERENS, Circuit Judges, and McCALL, District Judge. MCCALL, District Judge. In the view we take of this case it is only necessary to say that it was heard before the court and jury, resulting in a verdict for the defendant. A motion for a new trial was entered and disallowed. Errors were assigned, and appeal taken. The errors assigned by appellant are as follows: "(1) The court erred in ruling out evidence offered on behalf of plaintiff over the exceptions of plaintiff. (2) The court erred in the charge to the jury. (3) The court erred in refusing to charge the jury as requested. (4) The court erred in overruling plaintiff's motion for a new trial. (5) The judgment is contrary to the weight of the evidence. (6) The judgment is contrary to law. (7) The verdict should have been for the plaintiff, instead of for the defendant." A casual examination of the assignment of errors discloses the fact that it wholly fails to meet the requirements of the rules of this court. Rule 11 (150 Fed. xxvii, 79 C. C. A. xxvii) provides as follows: "The plaintiff in error or appellant shall file with the clerk of the court below, with his petition for the writ of error or appeal, an assignment of errors, which shall set out separately and particularly each error asserted and intended to be urged. No writ of error or appeal shall be allowed until such assignment of errors shall have been filed. When the error alleged is to the admission or to the rejection of evidence, the assignment of errors shall quote the full substance of the evidence admitted or rejected. When the error alFor other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes leged is to the charge of the court, the assignment of errors shall set out the part referred to totidem verbis, whether it be in instructions given or in instructions refused. Such assignment of errors shall form part of the transcript of the record and be printed at the request of the court, and errors not assigned according to this rule will be disregarded, but the court, at its option, may notice a plain error not assigned." In substance, this rule requires that the appellant shall file an assignment of errors, stating separately and particularly each error asserted and intended to be urged. If the error alleged is to the admission or to the rejection of evidence, the assignment of errors shall quote the full substance of the evidence admitted or rejected. If the error alleged is to the charge of the court, the assignment of errors shall set out the part referred to totidem verbis, whether it be instructions given or instructions refused. Errors not assigned according to this rule will be disregarded; but the court, at its option, may notice a plain error not assigned. The first error assigned does not quote the full substance of the evidence ruled out, nor, indeed, does it quote any part thereof, but in the most general fashion states that the court erred in ruling out evidence offered on behalf of the plaintiff. The second and third assigned errors as to the charges are as general as the first. In what particular did the court below err in the charge to the jury? What particular request did the court below refuse to give in charge to the jury? In short, under the rule of the court above quoted, there is no error assigned of which this court can take notice, unless it could do so under the last clause. Coney Island Company v. Dennan, 149 Fed. 687, 79 C. C. A. 375. Since there is no error in the record so plain as to warrant the court on its own motion to take notice of it, the judgment below must be affirmed. MEYER V. NATIONAL BISCUIT CO. (Circuit Court of Appeals, Seventh Circuit. January 5, 1909.) No. 1,496. Courts (§ 352*)—Federal COURTS-CONFORMITY TO STATE PRACTICE-DISMISSAL AND NONSUIT. Under the conformity act (Rev. St. U. S. § 914 [U. S. Comp. St. 1901, p. 684]), it was error for the federal Circuit Court, sitting in Illinois, in an action tried to a jury, to refuse plaintiff's motion for leave to take a nonsuit, after the judge had announced his decision sustaining a motion for a directed verdict. [Ed. Note. For other cases, see Courts, Dec. Dig. § 352.* Conformity of practice in common-law actions to that of state court, see notes to O'Connell v. Reed, 5 C. C. A. 594; Nederland Life Ins. Co. v. Hall, 27 C. C. A. 392.] In Error to the Circuit Court of the United States for the Eastern Division of the Northern District of Illinois. *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes Edward Maher and Robert F. Kolb, for plaintiff in error. Before GROSSCUP, BAKER, and SEAMAN, Circuit Judges. BAKER, Circuit Judge. At the conclusion of the evidence in this action for damages on account of personal injuries the defendant company moved for a directed verdict. After argument by counsel for the respective parties the judge announced his decision sustaining the motion. Thereupon plaintiff moved for leave to take a nonsuit. This motion was overruled, and plaintiff duly excepted. The judge then gave a peremptory instruction in obedience to which the jury rendered a verdict for defendant. While it may be true that there is sufficient elasticity in the conformity act (section 914, Rev. St. U. S. [U. S. Comp. St. 1901, p. 684]; Indianapolis & St. L. R. Co. v. Horst, 93 U. S. 291, 23 L. Ed. 898; Mexican Central R. Co. v. Pinkney, 149 U. S. 194, 13 Sup. Ct. 859, 37 L. Ed. 699) to permit the United States courts to decide that the state practice giving plaintiffs in actions at law, where jury trial has not been waived, the right to take nonsuits at any time before the jury retire should not be applied to the disposition of a case on demurrer to the evidence, or on the present-day substitute, the motion for a directed verdict (Parks v. Southern R. Co., 143 Fed. 276, 74 C. C. A. 414), nevertheless we believe that the long-established custom of the United States courts sitting in Illinois of following the Illinois practice respecting nonsuits should be adhered to, at least until by duly promulgated rules the bar have been advised of the change. On the facts of this case plaintiff would have been entitled to a nonsuit in the trial courts of Illinois. Brown v. Lawler, 130 Ill. App. 540; Berry v. Savage, 2 Scam. 261; Howe v. Harroun, 17 Ill. 294; Adams v. Shepard, 24 Ill. 464; Gordon v. Goodell, 34 Ill. 429. In Wolcott v. Studebaker, 34 Fed. 8, Judge Dyer, sitting in the Circuit Court for the Northern District of Illinois, and following precedents established by Judge Drummond and Judge Blodgett, permitted the plaintiff to discontinue after a motion for a directed verdict had been sustained. In the Southern District Judge Humphrey ruled that plaintiff's motion for leave to take a nonsuit came too late, if it was not made until after the peremptory instruction had been given and the jury discharged from further service in the case. Drummond v. Louisville & N. R. Co., 109 Fed. 531. United States courts in Indiana. Gassman v. Jarvis, 94 Fed. 603. The practice is the same in the In Chicago, M. & St. P. R. Co. v. Metalstaff, 101 Fed. 769, 41 C. C. A. 669, the Circuit Court of Appeals for the Eighth Circuit approved the practice of the United States courts sitting in Missouri of permitting nonsuits in conformity to the practice in the Missouri courts. The judgment is reversed, and the cause remanded, with the direction to grant plaintiff's motion for a nonsuit. THE MESSENGER. (Circuit Court of Appeals, Seventh Circuit. January 5, 1909.) No. 1,444. SHIPPING (10*)-REGULATION OF GASOLINE VESSELS-COMPUTATION OF TON NAGE. * The superstructure of an inclosed cabin on a gasoline boat, which cabin extends from the bottom of the boat above the deck having windows in the superstructure, but which adds nothing to the carrying capacity of the boat in either passengers or cargo, is not a "closed-in space available for cargo or stores or for the berthing or accommodation of passengers or crew," which under Rev. St. § 4153 (U. S. Comp. St. 1901, p. 2812) is to be added to the space below deck in computing the vessel's tonnage, and where without it the boat is not over 15 tons burden, she is not subject to inspection, etc., under the provisions of Rev. St. § 4426 (U. S. Comp. St. 1901, p. 3029). [Ed. Note. For other cases, see Shipping, Cent. Dig. § 24; Dec. Dig. § 10.*] Appeal from the District Court of the United States for the District of Indiana. That the facts hereinafter stated might be the more readily understood, the following picture of the boat involved in this case was put into the record: Before GROSSCUP, BAKER, and SEAMAN, Circuit Judges. GROSSCUP, Circuit Judge. The action in the court below was a libel of information, under section 4426, tit. 52, c. 1, Rev. St. U. S. (U. S. Comp. St. 1901, p. 3029), by the District Attorney for the District *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes |