
    No. 503
    KINGREY v. N. Y. C. & St. L. RY. CO.
    U. S. Court of Appeals, 6th Circuit
    No. 2949.
    Decided March 14, 1924
    Rehearing denied April 11, 1924
    991. RAILROADS — Knowledge of position of employe of bridge contractor held for jury.
    225. CHARGE TO JURY — Failure to give instructions not requested and to except to refusal to give instructions, not considered.
    841. NEW TRIAL — Affidavit of absent witness that he was prevented from, attending trial by defendant’s claim agent entitles plaintiff to have the matter inquired into.
    Attorneys — Louis H. Winch, for Kingrey; D. R. Wilkin, for R. R.; all of Cleveland, O.
   KNAPPEN, C. J.

Epitomized Opinion

Action against a railroad for injuries to a bridge contractor’s employe sustained when an awning projecting from a locjomotivie ,fcab struck a scaffold on which he was working. Judgment for defendant and plaintiff appeals. In affirming the judgment the Court of Appeals held:

1. That the refusal to instruct peremptorily that the railroad should have known of the employe’s position on the scaffold .was not error, as it was a question under the evidence for the jury.

2. The Circuit Court of Appeals will not consider the Court’s failure to give an instruction not requested nor the refusal to give an instruction in the absence of an exception, except to prevent a miscarriage of justice.

3. The affidavit of another employe who was working with the plaintiff when the accident occurred that hei intended to testify for the plaintiff but was drugged by the defendant’s claim agent, which made him unconscious for eight days, entitled the plaintiff on a motion for a new trial to have the charges against the claim agent inquired into and passed on and it was error to deny the motion without inquiring into its merits.  