D. C.]

it means.

Opinion of the Court.

You will have a right to assume that the testimony of such a witness, if called, would be unfavorable to plaintiff. You have no right to assume that it would have been conclusive of the case, and that it would have ended the matter. You have only the right to assume it would have been unfavorable to the plaintiff, and for that reason he was not called; and likewise the plaintiff had the right to avail himself of sec. 1073 of the Code [31 Stat. at L. 1358, chap. 854], which does not allow the family physician to be called by the defendant as a witness in the case. It was her privilege to refuse to allow him to testify, but that fact is not, in the judgment of the court, sufficient to exclude or prevent you from applying the rule that I have just given to that witness, as well as any other witnesses."

After certain other instructions were given, and the case had been given to the jury, counsel for plaintiff, addressing the court, said: "I desire to renew my exceptions already taken.” To which the court replied: "All the exceptions will be preserved to you."

It will be observed that exception was only preserved to the giving of that portion of the above instructions which was requested by counsel for plaintiff. It is settled law in this jurisdiction that a mere exception, which fails to clearly point out to the trial court the ground of objection and the particular portion of an instruction to which the objection is directed, is insufficient, and cannot be made the basis of a proper assignment of error on appeal. Hinde v. Longworth, 11 Wheat, 199, 6 L. ed. 454; Moore v. Bank of the Metropolis, 13 Pet. 302, 10 L. ed. 172; Camden v. Doremus, 3 How. 515, 11 L. ed. 705; United States v. McMasters, 4 Wall. 680, 18 L. ed. 311; Burton v. Driggs, 20 Wall. 125, 22 L. ed. 299; Noonan v. Caledonia Gold Min. Co. 121 U. S. 393, 30 L. ed. 1061, 7 Sup. Ct. Rep. 911; District of Columbia v. Woodbury, 136 U. S. 450, 34 L. ed. 472, 10 Sup. Ct. Rep. 990; Choctaw, O. & G. R. Co. v. McDade, 191 U. S. 64, 69, 48 L. ed. 96, 101, 24 Sup. Ct. Rep. 24, 15 Am. Neg. Rep. 230; McDermott v. Severe, 202 U. S. 600, 610, 50 L. ed. 1162, 1168, 26 Sup. Ct. Rep. 709, affirming 25 App. D. C. 276, 289; De Forest v. United States,

11 App. D. C. 458, 461; District of Columbia v. Dietrich, 23 App. D. C. 577, 580.

The prayer requested was a proper one relating generally to the whole case. If counsel objected to it as including within its general scope the suppression of the testimony of the family physician, he should have so stated, and not have relied upon a general exception, which was not made to a ruling of the court upon either a general or special objection. No objection whatever was interposed to the granting of defendant's prayer. Counsel for defendant asked the trial justice if he had decided to grant the prayer which he had refused in the morning, to which the court replied in the affirmative, and, without any objection whatever calling for a ruling, counsel for plaintiff excepted. Not only was the prayer general, but the court in the modified instruction, to which no objection or exception whatever was made, indicated that the rule stated in the prayer was intended to apply not only to the family physician, but as well "to any other witnesses," implying clearly that there were other witnesses and other testimony within the scope of the prayer. This implication is amply supported by the record. We must not, however, be understood as expressng any opinion upon the more difficult question which would have arisen had counsel for plaintiff, by timely objection, stated as ground therefor that the objectionable feature of the prayer, as modified by the court, consisted in a statement that the failure of plaintiff to call the family physician as a witness regarding those matters exempted by statute created a presumption that if he had been called his testimony would have been unfavorable to plaintiff.

The remaining assignment of error relates to the refusal of the court to grant an instruction requested by counsel for plaintiff, casting the burden of proof upon defendant, of establishing, by a preponderance of the evidence, that the death of plaintiff's intestate was caused not from the accident, but from his diseased condition, which existed prior to the date of the accident. Plaintiff assumed the general burden of establishing that Carmody's death was caused "by the wrongful act, neglect, or default" of defendant. D. C. Code, sec. 1301 [31 Stat. at L.

1394, chap. 854]. The defense that Carmody's death was not the proximate result of the accident was not an affirmative defense. On the whole case, therefore, the burden was cast upon plaintiff of proving her right to recover. If the evidence established that Carmody's death was caused from disease, and not from the accident, plaintiff simply failed to sustain the burden which the law cast upon her.

No defense of contributory negligence is here relied upon, but the general defense that defendant's act was not the cause of Carmody's death. Hence there is no analogy between this case and the affirmative defense of contributory negligence in personal injury cases. The defense of contributory negligence implies an admission on the part of defendant that it was guilty of the negligent act which caused the injury, but that the injured party was guilty of negligence that contributed to cause the injury.

The general burden is on the plaintiff of establishing her whole case by a preponderance of the evidence to the satisfaction of the jury. "The questions of evidence that arise in actions for death are, for the most part, the same as those that arise in ordinary personal injury cases.

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As in other actions, the burden of proof is upon the plaintiff to establish his case, including the fact that the death was caused by the wrongful act or neglect of the defendant, by a preponderance of evidence. Tiffany, Death by Wrongful Act, 2d ed. 1913, § 189.

This rule has been followed in this jurisdiction. In Weaver v. Baltimore & O. R. Co. 3 App. D. C. 436, the court said: "The burden is always upon the plaintiff to make out his case. Where negligence furnishes the cause of action it must be proved by the party alleging it. There are some cases in which it has been said that the law presumes negligence on the part of the carrier from the mere happening of an accident to a passenger. This is not a strictly accurate statement of the law. The most that can properly be said is that when an injury occurs through some accident to the means of transportation, which is under the management of the carrier's employees, and

which, if they exercised proper care, cannot ordinarily happen, it affords reasonable evidence, in the absence of explanation, from which negligence may be inferred. Western Transp. Co. v. Downer, 11 Wall. 129, 20 L. ed. 160; Inland & Seaboard Coasting Co. v. Tolson, 139 U. S. 555, 35 L. ed. 271, 11 Sup. Ct. Rep. 653; Baltimore & O. R. Co. v. State, 63 Md. 135; Curtis v. Rochester & S. R. Co. 18 N. Y. 543, 75 Am. Dec. 258, 9 Am. Neg. Cas. 606; Federal Street & P. Valley R. Co. v. Gibson, 96 Pa. 83, 10 Am. Neg. Cas. 106; San Antonio & A. P. R. Co. v. Robinson, 73 Tex. 277, 11 S. W. 327; Scott v. London Docks Co. 3 Hurlst. & C. 596, 34 L. J. Exch. N. S. 220, 11 Jur. N. S. 204, 13 L. T. N. S. 148, 13 Week. Rep. 410." See also Harbison v. Metropolitan R. Co. 9 App. D. C. 60, 9 Am. Neg. Cas. 168; Sullivan v. Capital Traction Co. 34 App. D. C. 358. The judgment is affirmed, with costs.

Affirmed.

ROTTER v. HODGKINSON.

PATENTS; INTERFERENCE; RES JUDICATA; CONSTRUCTION OF CLAIMS.

1. The dissolution of an interference on the ground that one of the parties had failed to overcome the references to a prior patent is not res judicata of the question of priority involved in a subsequent interference between the same parties, declared after such party had amended his claims. (Citing Gold v. Gold, 34 App. D. C. 229, and Moore v. United States, 40 App. D. C. 201.)

2. Where in an interference there is no ambiguity in the claims and they are capable of a broad construction, the court will not read into them a limitation not expressed therein. If one of the parties desires to limit their construction, he should have done so in making his application for a patent. (Following Geltz v. Crozier, 32 App. D. C. 324; Engel v. Sinclair, 34 App. D. C. 212; Western Electric Co. v. Martin, 39 App. D. C. 147; and Leonard v. Horton, 40 App. D. C. 22.) 3. In an interference proceeding, where the rights of one of the parties to make the claims depends upon the words of the issue, "a governor

controlling both valves," and it appeared that while the governor of his device possibly did not directly control both of its valves, it did control one directly and the other indirectly, and that there was no prior art requiring a limitation to be put upon the word "controlling," thus requiring the broadest construction to be put upon it, it was held that he had the right to make the claims, and was entitled to an award of priority.

No. 940. Patent Appeals. Submitted January 12, 1915. Decided March 1, 1915.

HEARING on an appeal from a decision of the Commissioner of Patents in an interference proceeding. Affirmed.

The facts are stated in the opinion.

Mr. G. F. De Wein for the appellant.

Mr. Jonathan S. Green and Mr. Edgar W. McCallister for the appellee.

Mr. Chief Justice SHEPARD delivered the opinion of the Court:

This is an appeal from a decision of the Commissioner in an interference case relating to an invention of an improvement in a steam turbine system.

The issue is in the following two counts:

"1. In a power system, the combination of an engine, an exhaust pipe extending therefrom divided into two paths, a condenser in direct communication with said exhaust pipe by one of said paths, a turbine in communication with said exhaust pipe by the other of said paths, valves for limiting the flow through said paths, and a governor controlling said valves.

"2. In a power system, the combination of an engine, an exhaust therefor, a turbine in communication with said exhaust, a valve in the turbine inlet, a valve in said exhaust beyond the point of said communication, a governor controlling both said