Briscoe v. C. & A. R. R. et al. fore the witness had answered, plaintiff's counsel asked the question in this form: 'What signals, if any, were in vogue and should be given before a second coupling was attempted?" In this form the question is not open to serious objection, since it seeks to elicit the custom or practice in such matters. Later, however, plaintiff's counsel, over defendants' objections, was permitted to interrogate this witness as to "what signals should be given," and as to whether the engine "should" move or not move, under certain circumstances. And the witness answered by stating what "should" or "should not" have been done under the circumstances. While in form these questions are technically subject to criticism, under the circumstances the rulings below upon defendants' objections' cannot be regarded as prejudicial error. In the first place, this witness had been thertofore fully questioned as to his knowledge of the customs and practices in vogue in this yard when he worked there; and his subsequent examination as a whole shows that his answers to all of those questions were predicated upon these customs and practices. And following the questions mentioned above, plaintiff's counsel asked this witness what the "custom and practice" was as to keeping a lookout for the field switchman; and the witness answered: "The custom and practice was to know where his field man was before coupling in a string of cars at all times.' In eliciting testimony as as to the customs and practices in vogue, counsel frequently did not take the trouble to put their questions in the best form. Indeed, questions of defendants' counsel often required the witness to state what was the "duty" of a member of this crew, what signal "should" have been given, etc. Counsel evidently proceeded upon the theory that it was fully understood that such questions related to the conduct of the members of this crew as affected by the customs and practices prevailing; and obviously such was the case. 200 M. A.-45 Briscoe v. C. & A. R. R. et al, Complaint is also made of the admission of testimony of the witness McIntosh in regard to what he saw the next morning on the coupler of car No. 775. In answer to a question, the witness said: "Well I am not sure, but it looked like a splotch of blood." Defendants' counsel objected to the witness testifying in regard to the matter if he was "not sure about the thing," which objection was overruled, defendants excepting. It is urged that the witness was thereby permitted to surmise and conjecture. Strictly speaking, if this testimony was improper a motion should have been made to strike it out. But in any event we think that the court committed no prejudicial error in allowing the answer to stand. The witness did not undertake to affirm that the discoloration which he saw upon the knuckle was blood, but he did say, in effect, that it had the appearance of blood. We see no good reason why the answer should not have been allowed to stand; and obviously the matter was one which could not have prejudiced defendant. It is true that on crossexamination the witness said that he was not certain whether it was blood or rust upon the knuckle; but the fact that he was not certain as to its nature did not prevent his testifying as to the appearance of what he Complaint is made, in a general way, of the first instruction given for plaintiff. We have carefully examined it and we perceive no prejudicial error therein. Error is also assigned to the giving of plaintiff's instruction No. 4 attempting to define negligence, as follows: "Negligence, as used in these instructions, is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do or the doing of something which a prudent and reasonable Briscoe v. C. & A. R. R. et al. man would not do under the circumstances of a given This instruction fails to follow the well known definition of the term negligence, and we are at a loss to understand why it was given in this form. Nevertheless, we think that we could not with propriety hold that the giving thereof constituted reversible error, under the circumstances. Plaintiff's main instruction required the jury to find such facts as in themselves would constitute negligence on the part of both defendants, in the view of the case which we have taken above. A technical error in defining negligence could not have affected the jury's findings under this first instruction. The term negligence is used in but one other place in plaintiff's instructions, viz., in an instruction on contributory negligence, which told the jury, in effect, that to find the deceased guilty of contributory negligence they must find that he failed to exercise ordinary care for his own safety. In defendants' first instruction appears the expression "negligence as charged in the petition;" but the effect of this instruction is merely to tell the jury that there is no evidence, as to a defective coupling, and that "this is not an issue in the case." Another of defendants' instructions told the jury that there could be no recovery if Briscoe "was negligent in the least degree, and such negligence contributed to cause his death. In view of the nature of the case, and the character of the other instructions given, we do not think that the giving of plaintiff's instruction No. 4 constituted error materially affecting the merits of the action (Sec. 2082, Rev. Stat. 1909) or error affecting the substantial rights of the appellants (Sec. 1850, Rev. Stat. 1909). Complaint is made of the refusal of certain instructions offered by defendant, seven in number. That five of these, viz., Nos. 7, 8, 9, 11 and 12, were properly refused, follows from what we have said above in discussing the ruling below on the demurrer Briscoe v. C. & A. R. R. et al. to the evidence. By defendants' refused instruction No. 6 it was sought to have the jury told that there was no evidence that Briscoe "was attempting to uncouple the cars while between them, or that there was anything wrong with the coupling apparatus between car number 56 and 775 which required him to go between the cars for the purpose of making a disconnection or cut off." And by defendants' refused instruction No. 10 it was sought to have the jury told that there was no evidence that it was the practice and custom to sound the whistle or ring the bell on the engine during such switching operations, and that they could not find the defendant railroad company negligent in failing to sound the whistle or ring the bell before moving the engine against car No. 56. We think that it was not prejudicial error to refuse to direct special attention to these matters, telling the jury that there was no evidence as to each of them. The instructions given fully covered the issues in the case to be submitted to the jury; and we think that appellants have no just cause to complain of the refusal of these instructions. We perceive no reversible error in the record, and it follows that the judgment should be affirmed. It is so ordered. Reynolds, P. J., and Becker, J., concur. INDEX By ALPHONSO HOWE. ACCIDENT INSURANCE. See Insurance, 13. ACTIONS. See Common Carriers; Death by Wrongful Act; Divorce, 3; ADMINISTRATORS. See Executors and Administrators. ADMISSIONS OF RECORD. See Evidence, 9. AMENDED PETITION. See Pleading. ANSWER, NEW ANSWER. See Pleading, 2, 3. APPEAL AND ERROR. See Appellate Practice; Trial Practice. APPEAL BONDS. See Appellate Practice, 3, 4, 5. APPEALS. See Appellate Practice, 3, 4, 5; Motion for New Trial; APPELLATE COURTS. See Courts. APPLICATION OF PAYMENT. See Banks and Banking, 8; Damages, 8; APPELLATE PRACTICE. See Courts, 3, 4; Divorce, 3; Pleading, 5. In a suit at law, involving a long account, such as to make the case 3. Bonds: Appeal Bonds: Effect of Approved by Trial Court: Super- 4. Same: Stay of Execution. It is not necessary that the order 5. Same: Sufficiency of Bond After Approval: Question for Appellate |