
    211 F. 459
    COPPER RIVER & N. W. RY. CO. et al. v. HENEY.
    No. 2300.
    Circuit Court of Appeals, Ninth Circuit.
    March 3, 1914.
    
      R. J. Boryer, of Cordova, Alaska, and W. H. Bogle, Carroll B. Graves, F. T. Merritt and Lawrence Bogle, all of Seattle, Wash., for plaintiffs in error.
    E. E. Ritchie, of Valdez, Alaska, T. C. West and Fernand de Journel, both of San Francisco, for defendant in error.
    Before GILBERT and ROSS, Circuit Judges, and WOLVERTON, District Judge.
   GILBERT, Circuit Judge

(after stating the facts as above).

We may pass by the defendants’ motion for a non-suit, made at the close of the plaintiff’s evidence, the denial of. which is assigned as error, for the defendants thereafter waived their motion by offering testimony in defense of the action.

Error is assigned to the refusal of the court to direct a verdict in favor of the defendants. The motion was based on the grounds: That the plaintiff had failed to establish that both the defendants were engaged in the business of a common carrier; that he failed to establish that he was employed or working for the Katalla Company; that the evidence proved his contributory negligence; and that there was no evidence to make out a case against the defendants. The argument made in support of this assignment of error presents grounds in addition to those which were expressed in the motion for a directed verdict, and it is said that a joint action against the two corporations cannot be maintained; that the action must be based either on the Employers’ Liability Act (45 U.S.C.A. § 51 et seq.) or on the common law, and not on both, and that if the act applies to either defendant as a common carrier, it supersedes all common law and statutory liability on its part. It is true that the act of Congress supersedes state and territorial laws “in the matter with which it deals.” Francis v. McNeal, 228 U.S. 695, 33 S.Ct. 701, 57 L.Ed. 1029; El Paso & N. E. Ry. v. Gutierrez, 215 U.S. 87, 30 S.Ct. 21, 54 L.Ed. 106. But if the Katalla Company is not a common carrier, as contended by the defendants, it is not within the act, and common-law remedies against it remain unimpaired.

While neither the complaint nor the answers alleged that either of the corporations was a common carrier, the complaint alleged that the Copper River Company was operating a line of railroad, and that the Katalla Company - was a subsidiary company of the Copper River Company, and that the latter in operating its road did so partly through the Katalla Company as its agent. The testimony established these allegations. It was proven that the Copper River Company was at the time of the accident a common carrier. It was also shown that the Katalla Company transacted the business of the road, issued in its own name bills of lading for goods carried thereon and tickets for passengers bearing the heading, “Katalla Company Constructing and Operating the Northwestern Railway Company.” The resident engineer of the road, who had charge of the work in the tunnel, and who was called as a witness by the plaintiff, testified that he was unable to state which of the two corporations was engaged in conducting the business of a common carrier, but that he got his pay by the checks of the Katalla Company. There was evidence that the Copper River Company was paying the license fee required by law as a common carrier; and, while there was' evidence tending to show that the Katalla Company did not pay such a license, there was no positive proof to that effect. And whether it paid a license fee or not, it was a common carrier within the provision that the Employers’ Liability Act shall include “persons or corporations charged with the duty of the management and operation of the business of a common carrier.” The plaintiffs in error not only did not plead that one of the corporations was a common carrier, and that the other was not, or that two causes of action were improperly united, but on the trial they offered no evidence whatever to show that such was the case, or to explain the relations between the two corporations, and at no time did they move that the plaintiff be required to elect between causes of action. There was no misjoinder, therefore, of causes of action.

But if it had been true, as contended by the defendants, that misjoinder was disclosed by the plaintiff’s evidence, that fact, it is clear, would not entitle the defendants to a directed verdict in their favor. Their remedy was to move the court at the conclusion of the testimony to require the plaintiff to elect as against which of the defendants he would proceed. 21 Cyc. 653; French v. Central Construction Co., 76 Ohio St. 509, 81 N.E. 751, 12 L.R.A.(N.S.) 669, 118 Am.St.Rep. 891.

As to the other grounds of the motion, it was shown that the plaintiff was paid by the checks of the Katalla Company, and upon the case made by the plaintiff there was evidence to go to the jury tending to prove the negligence of the defendant in not properly lighting the dangerous opening in the platform, or in failing to guard the same by railing; precautions which would necessarily be suggested by reasonable care for the safety of the employees. The defense of contributory negligence of the plaintiff as a complete defense was eliminated by the uncontradicted evidence that both the defendants were common carriers.

We are precluded from considering the assignments df error which are based upon instructions to the jury and refusals to instruct, for the reason that it does not appear that timely exceptions were taken to the instructions so given or denied. On May 10, 1913, two days after the jury had returned their verdict, the plaintiffs in error filed in the court below a paper containing their exceptions to the court’s instructions and refusals to instruct; and it does not appear in the bill of exceptions that prior to that date, or at-any time during the trial, any such exceptions were taken. It seems unnecessary to cite authorities to the proposition that exceptions to the charge taken after the jury had brought in a verdict are of no avail in an appellate court. Reference may be made to Western Union Telegraph Co. v. Baker, 85 F. 690, 29 C.C.A. 392, and cases there cited. Bidwell v. George B. Douglas Trading Co., 183 F. 93, 105 C.C.A. 385, and Star Co. v. Madden, 188 F. 910, 110 C.C.A. 652.

The judgment is affirmed.  