Bolen-Darnall Coal Co. v. Hicks

• Decision Date: 17 October 1911
• Docket Number: 3,513.
• Citation: 190 F. 717
• Parties: BOLEN-DARNALL COAL CO. v. HICKS.
• Court: U.S. Court of Appeals — Eighth Circuit

190 F. 717

BOLEN-DARNALL COAL CO. v. HICKS.

No. 3,513.

United States Court of Appeals, Eighth Circuit.

October 17, 1911

(Syllabus by the Court.)

It is indispensable to a review of a ruling that there was substantial evidence to sustain a verdict or a finding of fact that the bill of exceptions shall contain all the evidence at the trial, or all the evidence upon the specific issue found.

But the omission of evidence which does not appear to have been material from a bill of exceptions which recites that it contains all the evidence and bears the 'O.K.' of the objecting party, and the signature of the judge, is not fatal to the review. A party may not avail himself of an error he has himself induced the judge who tried the case to commit.

Conjecture will not sustain a verdict.

The burden is on an employe to prove that his injury was caused by the negligence of his employer which he charges, and where the evidence leaves the matter uncertain, and shows that any one of several causes, for one of which the employer and for some of which the employe might have been responsible, may have produced it, and there is no substantial evidence that the negligence of the employer was the real cause of it, the employe fails in his testimony, and a verdict for him cannot stand. Patton v. Texas & Pacific Ry. Co., 179 U.S 658, 664, 21 Sup.Ct. 275, 45 L.Ed. 361.

The plaintiff charged that he was burned in a mine by an explosion caused by the negligence of a miner in leaving an open keg of powder in an entry from 50 to 75 feet distant from shots the plaintiff fired. The defendant claimed that the explosion and burning were caused either by a windy shot caused by conflicting shots which it was the duty of the plaintiff to inspect before firing and not to fire if they conflicted, or by his firing shots in different rooms at the same time, contrary to a rule of the company. Three witnesses testified that in their opinion the explosion was caused by the conflicting shots which produced a windy shot. Two witnesses testified that it was possible for fire from a properly prepared shot to reach and explode the powder in the keg and one that it might be probable in the particular case but no witness testified that it was probable, or that in his opinion the explosion was caused by fire from a properly prepared shot reaching the powder in the keg.

Held there was no substantial evidence to sustain a verdict that the explosion was caused by the negligence of the miner who left the keg of powder in the entry.

Vincent M. Miles, for plaintiff in error.

John T. Hunt and James B. McDonough, for defendant in error.

Before SANBORN, Circuit Judge, and MARSHALL and WILLIAM H. MUNGER, District Judges.

SANBORN Circuit Judge.

This writ of error challenges a judgment in favor of J. B. Hicks, a shot firer, employed by the Bolen-Darnall Coal Company, on account of numerous alleged errors of law, one of which is that the court refused to instruct the jury to return a verdict for the company. The only charge of negligence of the company submitted to the jury was that John Oiler, a miner in the employ of the company whose negligence was imputable to it under the laws of Arkansas where the accident happened, was guilty of negligence which caused the injury of Hicks, in that he left black powder in an open keg in an entry in the mine near to the mouth of one of rooms 8 and 9 in which Hicks fired four shots. The question which conditions the correctness of the ruling submitting this charge to the jury therefore is, Was there any substantial evidence to sustain it?

But counsel for the plaintiff below object to the consideration of this question, and insist upon an affirmance of the judgment because the bill of exceptions does not contain a map of the mine which the court of its own motion refused to admit in evidence, but which was used for illustration in the examination of witnesses, and because the bill, after reciting that the first witness examined by reference to the map was requested to step down and explain it and 'did so by saying here and there and his statement would not be intelligible in print,' related that another witness who was requested to step down before the jury and explain on the diagram how his shot was placed 'did as requested,' and 'explained to the jury on the map,' that a third witness was requested to step down before the jury a minute and show what portion of each shot had not split the coal and had blown out and 'did as requested,' and that a fourth witness was asked to point out to the jury on the diagram the shot that was in room 8 and 'did as requested,' and also because the bill contained numerous other references of witnesses to the map and to marks on it which are not more intelligible.

It is a general rule that it is indispensable to a review of a ruling that there was substantial evidence to sustain a verdict or finding of fact that the bill of exceptions shall contain all the evidence in the case or all the evidence on the specific issue of fact found. Lesser Cotton Co. v. St. Louis, I.M. & S. Ry. Co., 52 C.C.A. 95, 105, 114 F. 133, 143.

But this bill contains a statement at the close of the evidence that it contains all of it and it bears at the foot of the certificate of the judge the letters 'O.K.' and the signature of the leading counsel for the defendant in error. When the bill was presented to counsel for the defendant in error, and then to the judge for his signature, the former had the opportunity to suggest defects and mistakes therein which, if material, the judge would undoubtedly have corrected, and, if he had failed to do so, an exception to that failure would have presented the matter to this court. The fact that counsel then made no suggestion of any defect or omission confirms the impression that no material evidence was omitted which the bill produces. But counsel for the defendant in error went still further. He placed his 'O.K.' on the bill, and thereby doubtless induced the judge to sign it as it was. If there was material evidence omitted, it was error for the judge to sign this bill with the statement in it that all the evidence appeared therein, counsel for the defendant in error by his 'O.K.' and signature induced the judge to commit this error, and he ought not now to be permitted to take advantage of it. A party may not avail himself of an error which he has himself induced the judge who tried the case to commit. National Loan & Investment Co. v. Rockland Co., 36 C.C.A. 370, 372, 94 F. 335, 337; Walton v. Railway Co., 6 C.C.A. 223, 225, 56 F. 1006, 1008; Chase v. Driver, 92 F. 780, 34 C.C.A. 668; ...