Baldwin v. St. Louis, K. & N. Ry. Co.

• Decision Date: 16 December 1885
• Citation: 25 N.W. 918,68 Iowa 37
• Parties: BALDWIN v. ST. LOUIS, K. & N. RY. CO.
• Court: Iowa Supreme Court

68 Iowa 37

25 N.W. 918

BALDWIN

v.ST. LOUIS, K. & N. RY. CO.

Supreme Court of Iowa.

Filed December 16, 1885.

Appeal from Lee district court.

Action for a personal injury. There was a trial to a jury, and verdict and judgment were rendered for the plaintiff. The defendant appeals.Anderson Bros. & Davis, for appellant, St. Louis, K. & N. Ry. Co.

Browne & Browne, for appellee, John Baldwin.

ADAMS, J.

This case is before us on a second appeal. The decision upon the former appeal is reported in 63 Iowa, 210;S. C. 18 N. W. Rep. 884. The evidence upon this appeal differs in several respects from the evidence upon the former appeal, but it is not important that we should set out the difference in detail. The plaintiff was an employe of the defendant, and at the time of the injury was engaged with one Lawrence in taking a stick of timber from a pile in the defendant's lumber-yard. While so engaged, either the same pile, or one standing next to it, fell, and several sticks of timber fell on the plaintiff, and caused the injury of which he complains. He avers that at the time of the injury the pile which fell was not properly piled, and the evidence, we think, so shows. The cross-strips were not long enough to bind the different tiers together. The evidence tended strongly, if not conclusively, to show that there was no fault in the original construction, but that several of the cross-strips had been cut to enable employes of the defendantto take timber out of the pile, and proper steps had not been taken to bind the tiers together again.

1. For the purpose of showing that the pile at the time of the injury was not in a safe condition, one Scroggs, an experienced man in piling lumber, was allowed to testify, against the objection of the defendant, as to how he would have piled the timber. The admission of his testimony is assigned as error. The plaintiff's object was, of course, to show what in the opinion of the witness was the proper way of piling such timber. The objection urged by the defendant is that the subject of the witness' testimony was not such as to justify the admission of expert evidence; and in this we have to say that we think that the defendant's position is correct. Where the construction of a given pile of timber is properly explained, it appears to us that a jury of men not especially experienced in piling timber would have no difficulty in forming an opinion for themselves as to the liability of the pile to fall and injure a person who should be near it. Such work, it seems to us, does not in any proper sense involve the mystery of technical knowledge or skill. If we are right in this, it follows that it was not competent for the witness to testify as to how he would have piled the timber, or how, in his opinion, it ought to have been piled, and the testimony was improperly admitted.

2. The plaintiff was allowed to read, against the objection of the defendant, the testimony of one Hosmer, as the same was shown by the transcript of the short-hand reporter to have been taken on a former trial. The admission of the evidence is assigned as error. The question raised calls for a construction of a portion of section 3777 of the Code. It is provided in that section that the short-hand reporter's notes, or a transcript thereof, duly certified by the reporter, shall be admissible in any case in which the same are material and competent to the issue therein with the same force and effect as depositions, and subject to the same objections, as far as applicable. The plaintiff contends, as we understand, that under that section the notes, or transcript thereof, may be read in evidence without any showing of excuse for not producing the witness in court. But, in our opinion, his position in this respect cannot be sustained. It often happens that the force of a witness' testimony is greatly impaired by his manner or appearance on the witness stand. Probably this is usually so where a witness undertakes to testify to something which is untrue, or which he does not fully understand. All testimony, therefore, should be introduced by examination of the witness in court, unless sufficient reason is shown for dispensing with his presence. Where a witness who testified upon a former trial has died, it is competent, at common law, to show what his testimony upon the former trial was. Mayor of Doncaster v. Day, 3 Taunt. 262; Glass v. Beach, 5 Vt. 172;Lightner v. Wike, 4 Serg. & R. 203. The same is true where the witness has become insane, and in some other cases. See Greenl. Ev. § 163, and cases cited. Under our system of official short-hand verbatim reporting, the legislature has gone further, and has provided that the reporter's notes, or his extended transcript of them, may be introduced where the evidence is material and competent, subject only to the same objections which might be made to the witness' deposition, so far as applicable. But one of the objections which may always be urged against a deposition is that there does not appear to be any statutory ground for the introduction of the witness' testimony by deposition. It is true, neither the notes nor transcript constitutes a deposition, nor is the testimony taken down by the reporter with specific reference to its use upon a subsequent trial as a deposition. Such being the case, it is not to be expected that the notes or transcript will show any statutory ground for their use as a deposition. But it does not follow that such ground may not be shown otherwise, and, in our opinion, it should be. We cannot think that the legislature designed to go further than to allow the reading of the notes or transcript as a deposition, where a deposition in form could have been taken.

It is contended, however, that even a deposition may be read in evidence where no statutory ground appears for taking it; and in support of such rule Cook v. Blair, 50 Iowa, 128, is cited. But in that case no objection was made at any time that there was...