It was properly refused. Grand Trunk Railway Co. of Canada v. Ives, 144 U.S. 408, 12 S.Ct. 679, 36 L. Ed. 485; Rio Grande Western Ry. Co. v. Leak, 163 U.S. 280, 288, 16 S.Ct. 1020, 41 L.Ed. 160; Carpenter v. Connecticut General Life Ins. Co., 10 Cir., 68 F.2d 69, 73. The court gave an instruction on the issue of contributory negligence. It was incomplete and imperfect in certain particulars, but counsel for the Railroad Company made no objection and took no exception to the instruction as given. The Railroad Company, therefore, is precluded from assigning such instruction as error under Rule 51 of the Federal Rules of Civil Procedure, 28 U.S.C.A.
Here again, the court by implication at least left the impression with the jury that the question of the defendant's negligence was an issue, if indeed not a controlling one. While it is true the court in part charged correctly as to the basis of liability, yet the interspersed references to negligence made the instructions as a whole confusing, and instructions which are susceptible of two meanings are erroneous because the jury may be misled. Carpenter v. Connecticut General Life Ins. Co., 10 Cir., 68 F.2d 69; J.H. Sullivan Co. v. Wingerath, 2 Cir., 203 F. 460; Mideastern Contracting Corporation v. O'Toole, 2 Cir., 55 F.2d 909. Other contentions will not be considered because it seems unlikely that the questions will again be presented on retrial of this action.
The submission of this element of damages, upon which the lessor had not been heard, was error. Deserant v. Cerillos Coal R. Co., 178 U.S. 409, 420, 20 S.Ct. 967, 44 L.Ed. 1127; Carpenter v. Connecticut General Life Ins. Co., 10 Cir., 68 F.2d 69; J.H. Sullivan Co. v. Wingerath, 2 Cir., 203 F. 460, 461. Western Real Estate Trustees v. Hughes, 8 Cir., 153 F. 560; Walsh v. Jackson, 33 Colo. 454, 81 P. 258.
" See, also, Carpenter v. Connecticut Gen. Life Ins. Co., 10 Cir., 68 F.2d 69, 73; Gulf Compress Co. v. Insurance Co., 129 Tenn. 586, 167 S.W. 859. The gravamen of the complaints was that all of these possible elements of negligence taken together, and not singly, constitute their case and the requests, if given, would have tended to segregate, in the minds of the jury, matters which bore on the larger questions of due care.
Hansen v. Boyd, 161 U.S. 397, 405, 16 S.Ct. 571, 40 L.Ed. 746; Longsdorf, Cyc.Fed.Proc., vol. 4, § 1440, p. 975. Citing: Perovich v. United States, 205 U.S. 86, 92, 27 S.Ct. 456, 51 L.Ed. 722; Rio Grande Western Ry. v. Leak, 163 U.S. 280, 288, 16 S.Ct. 1020, 41 L. Ed. 160; Grand Trunk Ry. Co. v. Ives, 144 U.S. 408, 433, 12 S.Ct. 679, 36 L. Ed. 485; Carpenter v. Connecticut General Life Ins. Co., 10 Cir., 68 F.2d 69, 73; Urban v. United States, 10 Cir., 46 F.2d 291, 293; Pullman Co. v. Hall, 4 Cir., 46 F.2d 399, 404. Our attention is called to our decision in Sacramento Suburban Fruit Lands Co. v. Parker, 9 Cir., 36 F.2d 926, and in Sacramento Suburban Fruit Lands Co. v. Kral, 9 Cir., 41 F.2d 508, as supporting appellant, but a reading of these opinions will serve sufficiently to distinguish those cases from the instant case.
The general principles controlling its solution have been laid down with unusual uniformity in State and Federal Courts. For the purpose of this opinon, it will be sufficient to refer to some of the leading ones. Ætna Life Ins. Co. v. Ryan, 2 Cir., 255 F. 483; Carpenter v. Connecticut Gen. Life Ins. Co., 10 Cir., 68 F.2d 69; Clarke v. Order of United Commercial Travelers, 5 Cir., 99 F.2d 457; Davis v. Jefferson Standard Life Ins. Co., 5 Cir., 73 F.2d 330, 96 A.L.R. 599; Harrison v. New York Life Ins. Co., 6 Cir., 78 F.2d 421; Korff v. Travelers Ins. Co., 7 Cir., 83 F.2d 45; Mass. Protective Ass'n v. Lewis, 3 Cir., 72 F.2d 952; Ryan v. Continental Casualty Co., 5 Cir., 47 F.2d 472; Thornton v. Travelers' Ins. Co., 116 Ga. 121, 42 S.E. 287, 94 Am.St.Rep. 99; Preferred Accident Ins. Co., of New York v. Combs, 8 Cir., 76 F.2d 775. How the principle is applied in each case depends, of course, upon its particular facts. Indeed, each of these cases, as it addresses itself, first to the court to determine if there is an issue of fact, and next to the jury to determine its solution, turns upon its peculiar facts.
The record does not disclose that in qualifying the jurors in the jury box that the matter was further pursued by inquiry as to whether any of the jurors were interested in any way, directly or indirectly, in any insurance company. Harris v. Newsom, 8 Cir., 23 F.2d 652; Carpenter v. Connecticut General Life Ins. Co., 10 Cir., 68 F.2d 69; Najera v. Bombardieri, 10 Cir., 46 F.2d 281; Southern Kansas Stage Lines v. Gibson, 10 Cir., 87 F.2d 23; Mutual Life Ins. Co. v. Parkinson, 3 Cir., 72 F.2d 759; F.W. Woolworth Co. v. Davis, 10 Cir., 41 F.2d 342; Pickwick Stage Lines v. Edwards, 10 Cir., 64 F.2d 758. The question of possible insurance covering defendant's car under the laws of New Mexico appears in no way to have been pertinent to any issue in the case.
Shields v. City of Loveland, 74 Colo. 27, 218 P. 913. No reference is made in the brief of the company to the defense that the property was worth $400,000; that the city does not have and can not secure the money with which to make payment for it; and that for such reason the prosecution of the proceeding with its costs and expense to the company would deprive it of property without just compensation in violation of the due process clauses in the Federal and State Constitutions. That issue was thus abandoned and need not be considered. Travelers' Ins. Co. v. Bancroft (C.C.A.) 65 F.2d 963; Carpenter v. Connecticut General Life Ins. Co. (C.C.A.) 68 F.2d 69; United States Potash Co. v. McNutt (C.C.A.) 70 F.2d 126. It is provided in chapter 61, section 6, Colorado Statutes Annotated 1935, that the court shall hear the allegations and proofs of all interested parties touching the regularity of a proceeding of this kind.
In instructing on concurrent negligence, the court called attention to the facts disclosed by the evidence, including the location of the filling station; but that was reasonably necessary in explaining the law relating to concurrent negligence, and no undue emphasis was laid upon any part of the evidence. Furthermore, under ordinary circumstances, an alleged error occurring in the trial must be called to the attention of the court by specific objection and exception. Aldridge v. United States (C.C.A.) 67 F.2d 956; Carpenter v. Connecticut General Life Ins. Co. (C.C.A.) 68 F.2d 69. A general exception to the instructions or a portion of them, without specifically pointing out the error relied upon does not present anything for review on appeal. Pennsylvania R. Co. v. Minds, 250 U.S. 368, 39 S.Ct. 531, 63 L.Ed. 1039; Burns v. United States, 274 U.S. 328, 47 S.Ct. 650, 71 L.Ed. 1077; Order of United Commercial Travelers v. Greer (C.C.A.) 43 F.2d 499; Shannon v. Shaffer Oil Refining Co. (C.C.A.) 51 F.2d 878, 78 A.L.R. 851; Hartford Accident I. Co. v. Collins-Dietz-Morris Co. (C.C.A.) 80 F.2d 441; Mansfied v. United States (C.C.A.) 76 F.2d 224; Hall v. Aetna Life Ins. Co. (C.C.A.) 85 F.2d 447. The failure to lodge specific exceptions to the instructions forecloses consideration of the question. The judgment is affirmed.
Such a general objection presents no reviewable question. Carpenter v. Connecticut General Life Ins. Co. (C.C.A.10) 68 F.2d 69; Cook Paint Varnish Co. v. Hickling (C.C.A.8) 76 F.2d 718. Nor is there substance to the objection. The government designated a part of its hospital as the "Tuberculosis Ward"; plaintiff was sent to the ward so designated. He testified to a fact, not a conclusion, and his testimony was direct and not hearsay. A man need not be dead to enter a mortuary. If plaintiff's trip to this ward was not as a tubercular patient, cross-examination would have neutralized any inference drawn from the question.