Copper River & N. W. Ry. Co. v. Reeder

• Decision Date: 02 February 1914
• Docket Number: 2299.
• Citation: 211 F. 280
• Parties: COPPER RIVER & N.W. RY. CO. et al. v. REEDER.
• Court: U.S. Court of Appeals — Ninth Circuit

211 F. 280

COPPER RIVER & N.W. RY. CO. et al. v. REEDER.

No. 2299.

United States Court of Appeals, Ninth Circuit.

February 2, 1914

[Copyrighted Material Omitted]

W. H Bogle, Carroll B. Graves, F. T. Merritt, and Laurence Bogle all of Seattle, Wash., for plaintiffs in error.

J. H. Cobb, of Juneau, Alaska, for defendant in error.

Before GILBERT and ROSS, Circuit Judges, and WOLVERTON, District judge.

WOLVERTON District Judge.

The plaintiffs in error were defendants below. A judgment was rendered against them, and in favor of the defendant in error, from which this writ is prosecuted. The action was for damages on account of personal injuries sustained by plaintiff, occasioned by the breaking down of the roof of the tunnel in which he was at work, thus permitting the timbers and earth and gravel to be precipitated upon him.

The complaint alleges that the defendants were doing business as common carriers; that plaintiff was in their employ at the time, namely, August 7, 1911, and was at work upon the line of railway extending from Cordova up the Copper river into the interior of Alaska. It is then further alleged that the accident by which plaintiff was injured as aforesaid was caused by the negligent failure of the defendants to furnish the plaintiff with a reasonably safe place to work; that said place was unsafe and dangerous by reason of the negligent failure of the defendants to suitably timber said tunnel and protect the workmen employed therein from the danger of cave-ins, and the falling of material constituting the roof of the bore thereof, all of which was known to the defendants, or by the use of reasonable diligence could have been so known, but was unknown to the plaintiff.

Defendants answered separately. The Copper River & Northwestern Railway Company admits that at the time it was doing business as a common carrier, but denies that the plaintiff was in its employ. The Katalla Company denies that it was doing business at the time as a common carrier, but admits that plaintiff was in its employ. Both deny the allegations of negligence. Both interpose two separate defenses: First, that the plaintiff assumed the risk; and, second, that the injury was caused by the negligence of a fellow servant.

The record as it comes here contains what are denominated 'Minutes of Trial.' Under this head are found minutes of the impaneling of the jury, of the swearing of certain witnesses, naming them, of the introduction of certain exhibits, of the filing of a motion for nonsuit at the close of plaintiff's case on the part of the Katalla Company, and also on the part of the Copper River & Northwestern Railway Company, and at the close of all the testimony a motion on the part of each for a directed verdict, of the denial of each of these motions and allowance of exceptions to the ruling of the court. These motions are then set out in full, and all appear to have been filed April 25, 1913. Under the same title, 'Minutes of Trial,' it appears that on April 26th arguments of counsel were had, and the jury, having retired for deliberation, in due time returned a verdict, which verdict is set out in the record.

Thereafter the record contains what is styled 'Transcript of Testimony,' etc. After entitling the cause, the record recites:

'Be it remembered that the above-entitled cause came on duly and regularly to be heard * * * on Thursday, the 24th day of April, 1913, at 10 o'clock a.m., before the Honorable Peter D. Overfield, Judge of said court and a jury'

-- in the usual form of introduction to a bill of exceptions. Thereafter the record contains the examination of some of the jurors and the ruling of the court touching their competency to sit, some exceptions being reserved. Then follows what appears to be the testimony of the witnesses. At the close of plaintiff's testimony, and when the plaintiff had rested his case, the record shows that the defendants each filed a separate motion for a nonsuit, which motions were argued, and nonsuit refused by the court, and exceptions were allowed. Thereafter follows the testimony of the defendants. At the close of the case the record shows that the defendants filed separate motions for a directed verdict. These motions, after argument, were denied, and exceptions allowed. Then follow the instructions of the court, and thereafter are appended, as appears from the record, two certificates of Fred M. Brown, Judge, one settling, allowing, and certifying the bill of exceptions, and the other entitled 'Certificate to Bill of Exceptions.' Thereafter the transcript of record contains plaintiff's requests for instructions in two items of the same designation, instructions requested by Copper River & Northwestern Railway Company, instructions requested by Katalla Company, and defendants' exceptions to the court's instructions to the jury. Under this head there appear 21 exceptions, and at the foot thereof this recital:

'Exceptions allowed this the 5th day of May, A.D. 1913. Peter D. Overfield, Judge.'

Following this are the verdict and motions for a new trial on the part of each of the defendants, order denying motions for new trial, and the judgment. Then follow the usual orders attending the allowance of a writ of error, including the assignments of error and citation. To all this are again appended the two orders, one allowing, settling and certifying bill of exceptions, and the other entitled 'Certificate to Bill of Exceptions.' Thereafter appear transcripts of exhibits, supposedly such as were introduced in evidence.

The defendant in error has filed a motion here to strike from the transcript the motions of the Katalla Company and the Copper River & Northwestern Railway Company for nonsuit and directed verdict, for the reason that they are not embodied in the bill of exceptions, and, further, for the same reason, to strike from such transcript plaintiff's requests for instructions, instructions requested by both the Copper River & Northwestern Railway Company and the Katalla Company, and their exceptions to the court's instructions, also the motion for a new trial made on behalf of each of said companies. The defendant in error also moves the court to strike from the transcript the document or paper entitled 'Transcript of Testimony,' etc., for the reason that said transcript, although intended as a bill of exceptions, is not signed by the judge of the court below, or otherwise properly authenticated so as to become a part of the record on writ of error.

The first questions to be disposed of arise upon the motion to strike parts of the transcript of record because not incorporated in the bill of exceptions. The motions for a nonsuit and for a directed verdict are clearly not so incorporated. While they appear to have been filed with the proceedings during the course of the trial, the verity of the court's rulings respecting them, and the allowance of the exceptions, is not authenticated by the judge, and they cannot within themselves be termed a bill of exceptions, or treated as such. Furthermore, standing by themselves, they are wholly futile in bringing error to this court because no testimony accompanies them, and, without the testimony, no error can be made to appear touching the ruling of the court concerning them. The motion to strike as to these motions must be allowed.

Neither is any part of the record following the first two certificates of the judge, settling, allowing, identifying, and certifying the purported bill of exceptions, the first contained in the record, a part of such bill. We say 'purported' to distinguish this from the supposed bill of exceptions contained further on in the record, now to be noted.

It seems to be the contention of counsel for plaintiff in error that the requested instructions of the two defendant companies, together with the 21 exceptions noted thereto, and the allowance of such exceptions by the judge, constitute within themselves a bill of exceptions, and should be so treated. This contention is based upon the provisions of the Alaska Code, citing sections 1053 and 1055 of the Compiled Laws of the territory of Alaska. These statutes are sections 221 and 223 of the Civil Code of Procedure adopted by Congress. 1 Federal Statutes Annotated, page 92. Section 221 provides that:

'The point of the exception shall be particularly stated, and may be delivered, in writing, to the judge or entered in his minutes, and at the time or afterwards be corrected until made conformable to the truth.'

And section 223 that:

'The statement of the exception, when settled and allowed, shall be signed by the judge and filed with the clerk, and thereafter it shall be deemed and taken to be a part of the record of the cause.'

In this relation it should be noted that 'an exception' is defined by section 220 as: 'An objection taken at the trial to a decision upon a matter of law, whether such trial be by jury or court, and whether the decision be made during the formation of a jury, or in the admission of evidence, or in the charge to the jury, or at any other time from the calling of the action for trial to the rendering of the verdict or decision.'

These sections are taken bodily from the Oregon Code, and contemplate...