Oregon-American Lumber Co. v. Simpson , 8 F.2d 946 ( 1925 )

GILBERT, Circuit Judge

(after stating the facts as above). The defendant in error moves to strike ont the bill of exceptions on the ground thát it fails to comply with rule 4 of the Supreme Court Rules, adopted December 22, 1911, which requires that only so much of the evidence shall be embraced in the bill of exceptions as may be necessary to present clearly the questions of law involved in tho rulings to which exceptions are reserved, and such evidence as is embraced therein shall be set forth in condensed and narrative form, save as a proper understanding of the questions presented may require that parts of it may he set forth otherwise. While bills of exceptions which unnecessarily set out the stenographer’s transcript of the testimony have been disapproved, Wheeling Terminal Ry. Co. v. Russell, 209 F. 795, 126 C. C. A. 519; Rosen v. United States (C. C. A.) 271 F. 651, the courts have declined to strike them out, First Nat. Bank v. Moore, 148 F. 953, 78 C. C. A. 581; National Masonic Acc. Ass’n v. Shryock, 73 F. 774, 20 C. C. A. 3; Chicago G. W. Ry. Co. v. Price, 97 F. 423, 38 C. C. A. 239.

There is especial ground for so ruling in a case such as the ease at bar, where the only point submitted is that there is no evidence to support the verdict, for in such a case the bill of exceptions must affirmatively show that it contains all the testimony produced at the trial. Elliott v. Canadian Pac. Ry. Co., 161 F. 250, 88 C. C. A. 286. And while it might be preferable to present the evidence in narrative form, the failure to do so should not be held ground for denying relief on tho question of error so brought for review. The motion is denied.

The plaintiff in error relies upon tho assignment of error that the court denied its motion for a directed verdict in its favor, the motion having been made upon the ground that tho plaintiffs in the action had offered no evidence to establish the charges of negligence alleged in tho complaint, or to show that tho negligence charged was the direct and proximate cause of the accident. It is earnestly contended that the record is barren of evidence to show that the valves, whereby were operated the dead rolls used for the purpose of subjecting pressure upon the lumber while it was being sawed, were defective. It is true that tho evidence upon that subject is meager and to some extent circumstantial. The court below instructed tho jury that the question of negligence depended upon whether or not the valves were defective as charged, and that if they found that they were defective so as to prevent the dead rolls coming down sufficiently on tho lumber, that would constitute negligence. No exception was taken to that instruction. Upon a careful consideration of the testimony, we are not convinced that the question of negligence as charged was not properly submitted to the jury. Several operatives in the mill united in testifying that there was some defect in the operation of the dead rolls, and that there had been difficulty in bringing them down upon the lumber with sufficient force to hold it in place in the operation of sawing, and there was testimony that obstruction thereby caused had happened occasionally during a period of two or three weeks antecedent to the accident. There was also testimony that pieces of lumber had been thrown back witii great force and violence in the same manner as was thrown the piece which caused the death of the deceased. But the plaintiff in error says that there was no evidence that tho defect in the machine, if any there was, was the particular defect alleged in the complaint; that is to say, defective valves in the device for lifting and lowering the dead rolls. On that feature of the caso we think it sufficient to point to the testimony of two witnesses called by the plaintiff in error. One of them, an expert, testified that “if tho rolls would not come down there would naturally have to bo something wrong with the valves.” Another witness on cross-examination testified that after the accident he adjusted the valves, but he could not say how long thereafter, probably a month. He further testified that if the rolls would not come down freely it would mean that tho valves were leaking steam. There being ample evidence in the ease that the dead rolls did not in fact come down freely, the testimony thus furnished by the plaintiff in error tended to supply the reason for the defective operation. No other explanation was offered by any witness, and it is not perceived that there could have been any other explanation, in view of the structure and operation of the machine as described in the testimony. The plaintiff in error contends that the evidence shows the accident to have been directly occasioned by the negligent act of the edgerman in raising the dead rolls. But while there was testimony tending to show that the edgerman raised the dead rolls, he and others denied it, and there was evidence tending to show that the board could not have been thrown back from the saw if the dead rolls were properly functioning in exerting pressure upon the lumber.

The judgment is' affirmed.