Everett

The jury on the trial below returned a verdict in favor of the company and against the appellant here, who was plaintiff below. The plaintiff moved for a new trial and his motion was denied. He has appealed to this court.

His appeal is based on claim of two errors: (1) That the court erred in permitting testimony and evidence, under promise by defendant’s counsel to connect it up, to the effect that plaintiff used intoxicating liquor to excess that on occasion he was intoxicated; and (2) that the court erred in refusing to grant plaintiff’s motion for new trial on grounds that the evidence, as a matter of law, was insufficient to support the verdict.

The action was brought under the Federal Employers’ Liability Act, 45 U.S.C.A. § 51 et seq., and the Federal Boiler Inspection Act, 45 U.S.C.A. § 23 et seq.

Plaintiff testified that in the course of his employment he was walking on the runway on the front end of defendant’s locomotive, that the handrail pulled out from its bracket and that as a result he fell about eight feet and was injured, for which he asked $75,000. The defendant, while conceding at the trial that the handrail was found pulled out, denied that plaintiff fell as…