Taulbee

Appellee’s intestate, Russell L. Taulbee, was killed in a collision between appellant’s locomotive and an automobile driven by Taulbee at a point where appellant’s railroad crosses the public highway at or near a station called Wiota, in Valley county, Mont. As administrator of Taulbee’s estate, appellee, a citizen of Montana, brought this action to recover damages of appellant in the sum of $50,000, alleging that Taulbee’s death was caused by appel- • lant’s negligence. The action was commenced in a state court of Montana, but, on petition of appellant, a citizen of Minnesota, it was removed to and tried in the District Court of the United States.

Appellee’s complaint alleges that appellant negligently (1) caused Taulbee’s view of its railroad track to be so obstructed that he could not see appellant’s locomotive as it approached the crossing, (2) failed to place a flagman or signalman at the crossing, or to install and maintain there an automatic gong, bell, or other signal or device, to notify Taulbee of the approach of *21 appellant’s locomotive, (3) failed to sound the whistle and bell of its locomotive as it approached the crossing, and (4) ran its locomotive at an…

(dissenting).

The ruling of the court on the motion for a directed verdict was not excepted to and is therefore not reviewable. As pointed out in the majority opinion, the bill of exceptions does not state that appellant excepted to the court’s ruling. All that appears is that the court “noted” an exception, but, as the opinion correctly says, “A Federal court cannot properly ‘note’ an exception to a ruling unless the litigant against whom the ruling was made has, in fact, excepted to it.” This alone should dispose of the appeal.

To avoid this rule the majority opinion seeks to establish a presumption by indulging an exquisite casuistry not supported by the facts.

*23 Appellant, in its reply brief, does not contend that it asked for an exception to the ruling of the court denying its motion for a directed verdict, but insists that the mere statement of the court, “Motion denied. Exception noted,” is sufficient. But, as the majority opinion says: “In a federal court, a litigant must take his own exceptions. The court cannot take them for him or dispense with the taking of them.” In the face of appellant’s tacit admission, to indulge in presumptions seems out of order.

In any…