
    MONTEI, Appellant, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Respondent.
    St. Louis Court of Appeals,
    March 17, 1908.
    APPELLATE PRACTICE: Timely Exception: Involuntary Non-suit. At the conclusion of the plaintiff’s testimony the trial court directed the jury to return a verdict for the defendant, the plaintiff took a nonsuit with leave and filed his motion to set the same aside, which motion was overruled and exceptions saved. The plaintiff saved no exception to the peremptory instruction to find for defendant and for that reason the case cannot be reviewed on its merits.
    Appeal from Lawrence Circuit Court. — Hon. F. G. Johnston, Judge.
    Affirmed.
    
      McPherson & Eilpirt and M. Glardy for appellant.
    
      W. F. Evans and Woodruff & Mann for respondent.
   GOODE, J.

Action for a personal injury and damages to property by a . collision with a locomotive. At the conclusion of plaintiff’s testimony the court directed the jury to return a verdict for the defendant; whereupon plaintiff took a nonsuit with leave to move to set the same aside, and on the court’s refusal to set it aside, saved an exception to the refusal to set aside the judgment of nonsuit and grant him a new trial. He can derive no benefit from his exception, because he omitted to except to the instruction for a verdict for de-feudant. The decision of the appeal is controlled by the authority of Lewis v. Mining Co., 1’99 Mo. 463, wherein the Supreme Court expressly declared that on a record like the one before us, an appeal cannot be considered on the merits. There being no error in the record proper the judgment is affirmed.

All concur.  