Opinion of the Court.

Section 6 of the act of 1891 provides that in all cases not therein before, in that section, made final, "there shall be of right an appeal, or writ of error, or review of the case by the Supreme Court of the United States, where the matter in controversy shall exceed one thousand dollars besides costs." Under that provision, as the judgment of the Circuit Court of Appeals in the present case was not made final by § 6, and as the matter in controversy exceeds $1000 besides costs, the defendant had a right to a writ of error from this court.

We do not think there is anything inconsistent with this view in what was said by this court in McLish v. Roff, 141 U. S. 661, or in Chicago, St. Paul & Omaha Railway v. Roberts, 141 U. S. 690.

In the Circuit Court of Appeals, the defendant, by its fifth assignment of error, took the point that the Circuit Court had no jurisdiction of its person or of the subject matter of the action; and on the present writ of error from this court, the first assignment of error, filed in the Circuit Court of Appeals and sent up as part of the record, assigns as error the several errors set out in the assignment of errors before the Circuit Court of Appeals. The plaintiff, therefore, contends on this motion, that as, under § 5 of the act of 1891, the jurisdiction of the Circuit Court was in issue, the case might have been brought by a writ of error directly from the Circuit Court to this court. But it does not appear by the record that on the trial, the defendant made any objection to the jurisdiction of the Circuit Court. On the contrary, its petition for removal states that the action had been brought against it, and that the complaint had been duly served on it, and that the defendant had duly appeared. And, even if a writ of error from this court to the Circuit Court could have been taken, yet, as the defendant did not take such a writ of error, but took one from the Circuit Court of Appeals to the Circuit Court, the plaintiff cannot be heard to assert, as the ground of this motion, the fact that the defendant might have taken a writ of error from this court to the Circuit Court. Equally it cannot be said, as a ground for this motion, that the case is one which involved in the Circuit Court the con

Opinion of the Court.

struction or application of the Constitution of the United States, on the ground that the question arose whether the act of Congress incorporating the defendant was constitutional. Nor can it be objected, as a ground for this motion, that the defendant has waived its right to a review by this court, because it failed to take a writ of error from this court to the Circuit Court, to review the judgment of the latter court.

But, although this court has jurisdiction of this writ of error, we are of opinion that, under clause 5 of Rule 6 of this court, the judgment of the Circuit Court of Appeals must be affirmed, on the ground that there was color for the motion to dismiss, and that the writ was taken for delay only.

The bill of exceptions in the Circuit Court shows that the plaintiff was sworn as a witness, and that, after he had given his testimony, he rested, and then the defendant's counsel moved to dismiss the complaint on the ground that the plaintiff, upon his testimony, was shown to be guilty of contributory negligence. The motion was denied, and the defendant excepted. The defendant then called several witnesses, who were in its employ, and who testified that the plaintiff was injured at a point 110 feet east of the east end of the bridge, while attempting to jump on the front footboard of a moving locomotive, and that this occurred on the evening of November 5, 1888. The testimony of all but one of those witnesses for the defendant was taken by deposition in Dakota, and, except that one, they were not cross-examined.

The testimony of the plaintiff was that the accident happened while he was crossing a railroad bridge near Bismarck, in North Dakota, on November 6, 1888; that he was a laborer on the defendant's railroad, and was at work fixing up, the track near the west end of the bridge; that he lived near the east end of the bridge; that the custom of the company was to take the men home from their work on a car drawn by a locomotive over the bridge from the west to the east end, at about half-past 5 o'clock in the afternoon; that he had never crossed the bridge before; that on the afternoon of the 6th of November, "the English boss" told the laborers, about 56 in number, of whom the plaintiff was one, that there would be

Opinion of the Court.

no train to take them across the bridge that night, and that they would have to walk across; that the boss said that no train or engine would come over the bridge until about 7 or half-past 7; that the plaintiff started to walk across the bridge with the other laborers at about half-past 5 or 6 o'clock P.M., but in consequence of a pain in his side, the result of a fall a week previous, he was not able to keep up with the others, and fell behind and walked over the bridge by himself; that there was but one track on the bridge, and he was walking on that track; that he could not walk at the side of the track without crawling from one trestle to another; that the engine came on the bridge from the east, meeting him about its middle; that there was room on the bridge to allow him to step aside and let the engine pass, if he had seen it coming; that it was coming in front of him, right around the turn, but he could not see it; that he did not see it until it was on top of him; that he then tried to get out of the way, but slipped on the track, which was slightly frozen, and fell and caught his leg under the wheel, and the engine passed over it and his leg was cut off; that he remained in the hospital 7 months, and had not been able to work since; and that before the accident he earned $1.50 a day.

On cross-examination, he testified that if he had seen the locomotive coming he would have stepped to one side, out of the way, but he did not see it because it was coming around the curve; and that he never thought of the locomotive, because the boss told him there was nothing to come across, and he was walking at his ease, without thinking of anything. He further testified that he did not attempt to jump on a moving locomotive at the east end of the bridge.

At the close of the testimony on both sides, the defendant moved that the court direct a verdict for it, on the ground that the plaintiff had been guilty of contributory negligence in walking across the bridge in the manner he did, and also upon the ground that he was a trespasser on the bridge, and it was necessary for him to prove gross negligence on the part of the defendant. The motion was denied, and the defendant excepted. The court, in its charge, put the question fairly before the

Dissent of Brewer and Brown, JJ.

jury, and among other things told them that on the question whether it was a prudent thing for the plaintiff to walk across the bridge in the manner he did, and not see the engine approaching until it was directly upon him, they had the right to take into consideration the statement which he said was made to him by the boss, that it was safe for him to cross at that time, and that no engine would cross the bridge until about half-past 7 o'clock. To that portion of the charge the defendant excepted, but not to any other portion.

We concur with the view of Judge Coxe, in his opinion on the motion to set aside the verdict, that the question of the plaintiff's negligence was one of fact, and was submitted to the jury under instructions as favorable to the defendant as it could expect; and that the testimony of the plaintiff that the boss or foreman of the defendant had told him that no train or engine would come over the bridge until about 7 or halfpast 7 o'clock, was properly to be taken into consideration by the jury in determining the question whether the plaintiff was negligent in not seeing the engine.

We concur also with the view of the Circuit Court of Appeals, in the opinion or that court, given by Judge Lacombe, that it was fairly a question for the jury to determine, whether or not it was negligence on the part of the plaintiff not to keep a lookout for a coming engine, in view of the assurance of the boss that there was none to come; and that the case is quite within the decisions in Bradley v. New York Central Railroad, 62 N. Y. 99, and Oldenburg v. New York Central Railroad, 124 N. Y. 414.

The judgment is affirmed, and the cause remanded to the Circuit Court of the United States for the Southern District of New York, for further proceedings, as required by § 10 of the act of March 3, 1891, 26 Stat. 829.

MR. JUSTICE BREWER and MR. JUSTICE BROWN dissented on the ground that the Circuit Court should have directed a verdict for the defendant because the plaintiff had been guilty of contributory negligence.

Statement of the Case.

CHATEAUGAY ORE AND IRON COMPANY
BLAKE.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.

B. contracted with C. to construct and put up for him a crushing plant, with a guaranteed capacity of 600 tons daily, and C. agreed to pay therefor $25,000, one-half on presentation of the bills of lading and the remainder when the machinery should be successfully running. The machine was completed and put in operation October 1. The agreed payment of $12,500 was made on delivery, and $7500 in three payments in the course of a month. B. sent a man to superintend the putting up of the machine and to watch its working. Under his directions a book was kept in which were recorded either by himself or under his directions by C.'s foreman, the daily workings of the machine between October 18 and November 7, which account was copied by B.'s man and sent to B. The working from November 7 to the following March was also kept in the same way. In an action by B. against C. to recover the remainder of the contract price; Held,

(1) That B.'s man could use these books in his examination in chief to assist him in testifying as to the actual working of the machines from October 18 to November 7;

(2) That the defendant not having introduced the books, (which were in his possession,) in his evidence in reply to the plaintiff's evidence in chief, could not, in rebuttal, ask a witness to examine them and state the results as to the working of the machine in the months of November, December and January, which subjects had not been inquired about by the plaintiff.

Evidence of a local custom is not admissible unless it is shown to be known to both parties; and this court may infer, from the general course of the inquiries and proceedings at the trial, that a custom inquired of at the trial and so excluded, was regarded by the court and by both parties as a local custom, and not as a general custom, although the record may contain nothing positive on that point.

An exception that the court did not charge either of eighteen enumerated requests for special instructions except as it had charged is an insufficient exception.

THE Court stated the case as follows: