
    TEXAS & P. RY. CO. v. BEHYMER.
    (Circuit Court of Appeals, Fifth Circuit.
    December 3, 1901.)
    Appeal—Review—Waiver op Error.
    Where no request was made to take from the jury the question of the negligence of a railroad company in the handling and operation of its train at the time of the injury of a plaintiff, alleged as one ground of recovery, thé submission of such question to the jury is not a ground for reversal, although defendant may have been entitled to such an instruction under the evidence.
    In Error to the Circuit Court of the United States for the Eastern District of Texas.
    T. J. Freeman, for plaintiff in error.
    Cone Johnson, for defendant in error.
    Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.
   PER CURIAM.

The general charge requested in favor of the defendant in the court below was properly refused, because, if for no other reason, there was evidence tending to show that the de-fetidant railway company was negligent in regard to the appliances furnished,—that is to say, in regard to the spike protruding from the roof' of the car from which Behymer fell,—which negligence tended to contribute to Behvmer’s injury. No request appears to have been made to the .trial judge to take from the consideration of the jury the question of negligence of the railway company in Handling and operating the train, on the ground that the undisputed evidence shows that the train was handled in the usual, proper, and customary manner. There seems to have been considerable, if not conclusive, ground for such request, but we cannot go beyond the record. On the other errors assigned, we do not find that the trial judge erred to the prejudice of the plaintiff in error.

The judgment of the circuit court is affirmed.  