209 F. 795 | 4th Cir. | 1913
“Only so much, of the evidence shall he embraced in a bill of exceptions as may be necessary to present clearly the questions of law involved in the 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 be set forth otherwise.”
In this case the entire - transcript of the stenographer’s trial notes has been included in the bill of exceptions. No part of the evidence, no matter how formal or undisputed, has been reduced to narrative' form. Every question and every answer is reproduced in full. Colloquies between counsel or with the court, statements that the jury retired from the court or returned to it, and such like matters are found in it, although in most, if not all, cases they have no bearing on any question which can be considered by us.
The. rule which has been quoted above was adopted after full consideration. It is believed that compliance with it will not only save useless printing but will enable the court much more intelligently to pass upon the real issues involved. We know that counsel are usually busy. Some time may be saved by turning over the preparation of the bills of exception to stenographers and clerks. Such saving may not, after all, be worth what it costs. It is not impossible that some writs of error would not be sued out at all if counsel took the trouble to extract from the stenographer’s notes the precise points upon which they must rely. In almost all cases such a preliminary analysis would make the work of brief making and of oral argument both easier and more effective; The court must require compliance with the rule.
The defendant is a West Virginia corporation. It is engaged in interstate commerce. It operates a switching or terminal railroad which extends from Martins Ferry, Ohio, to Benwood, W. Va. The plaintiff is a citizen of Ohio. He was employed by the defendant as a brakeman on freight trains. In the regular course of its business it had delivered to a consignee in West Virginia sundry loaded cars which had come from points outside of the latter state. These cars'had been unloaded. The defendant sent a train to take them back. The plaintiff was one of the crew of such train. On the switch on which these cars were there were scales. The loaded cars had been weighed at the time of delivery. In order to determine the net weight of their contents, the cars had to be weighed after they had been emptied. Such weighing was habitually done by defendant’s train crew. For this
Defendant claims that the Safety Appliance Act (Act March 2, 1893, c. 196, 27 Stat. 531 [U. S. Comp. St. 1901, p. 3174]) had no application because at the time plaintiff was injured he was not engaged in interstate commerce. No assignment of error was made as to any ruling of the court below on this question. Had there been, it could not have been sustained, and that for two reasons: First. The cars were being
Much of the argument of the able and zealous counsel for .the defendant was directed to the circumstances under which an interstate carrier by rail became responsible for the failure of a coupler to couple automatically.
“While the defendant was engaged in weighing said cars, the knuckles of one of them was closed to aid the defendant in weighing said cars, that said knuckle was still so closed at the time of said injury, and that said closing of said knuckle prevented the coupler of said car from coupling automatically by impact and was the direct cause of said injury.”
Quite obviously this instruction, in the form in which it appears in the record, could not have been properly giyen. Doubtless, however, the word “defendant,” where wq have italicized it, was intended to be “plaintiff” and was so understood by court and counsel. Even so it was misleading. It ignored the evidence offered by the defendant itself-that, when the couplers were in order, they could be opened without going between the cars. The assignments of error to the rejection of testimony raise, although in a slightly different form, the questions already considered. We find no error in the rulings below concerning them.
Affirmed.