Whitsett

This is an action instituted by Fred Whitsett to recover damages for personal injuries sustained by him on account of the alleged negligence of the defendant, the plaintiff in error here. The plaintiff obtained a verdict and judgment, from which a writ of error is prosecuted.

The case was joined for trial in the court below with the case of Reardon, Administrator, just decided here under the title of Balaklala Consolidated Copper Company v. J. E. Reardon, Administrator, etc., 220 Fed. 584 , 136 C. C. A. 186 . The facts being the same in both cases, we adopt, therefore, the statement of the facts made in the opinion rendered in' that case, except in this the plaintiff was injured, while in that the injury resulted in death.

Points 1, 3, 4, 5, and 6 made by counsel in their brief are fully disposed of in the Reardon Case, and need no further examination here.

[1] The second point insisted upon relates to the alleged joining of two causes of action in one count, and in the refusal of the trial court to require the plaintiff to elect as to which of said causes he would proceed to trial upon. The complaint charges negligence in two particulars, namely, failure to provide a safe…