Diamond Coal & Coke Co. v. Allen

• Decision Date: 15 April 1905
• Docket Number: 2,069.
• Citation: 137 F. 705
• Parties: DIAMOND COAL & COKE CO. v. ALLEN.
• Court: U.S. Court of Appeals — Eighth Circuit

137 F. 705

DIAMOND COAL & COKE CO. v. ALLEN.

No. 2,069.

United States Court of Appeals, Eighth Circuit.

April 15, 1905

On December 24, 1900, the plaintiff (defendant in error) was in the employ of the defendant as a miner in defendant's coal mine at Diamondville, Wyo., and in what is called the back entry of level 'No. 3rd North.' He was following a car load of coal, which was being hauled by a horse, to block the wheels of the car whenever the horse should stop as the car, moving upon iron tracks, was ascending a considerable grade, to the main entry of the mine. At about 12 feet from the main entry this grade was steeper than at other places. The gauge of the track was 3 feet, and the box of the car flared to a width of 4 four feet at its top. The sloping passage, up the grade of which the car was being drawn, was of varying narrow width, and at its narrowest place was 7 1/2 feet wide. The car was hauled up the slope with a heavy load of coal, to a point about 12 feet from the main entry (beyond which the track would have been about level), and had reached the steepest part of the grade, when the horse stopped, and the plaintiff blocked the wheels of the car to prevent it from running backward down the slope. When the horse started forward again and moved the car, the plaintiff stooped and removed the blocking which had held the car wheels; but almost immediately, when the car had moved but a few feet, and while plaintiff was still at the place where he had removed the blocking, the chain which attached the whiffletree to the car broke, by the parting of one of its links, and the heavily loaded car started back and ran down the slope at great speed, striking, throwing down, and severely injuring the plaintiff.

Edward S. Ferry (Joseph T. Richards, on the brief), for plaintiff in error.

W. L Maginnis (Charles Stout, on the brief), for defendant in error.

Before SANBORN and HOOK, Circuit Judges, and LOCHREN, District Judge.

LOCHREN District Judge, after stating the case as above, .

1. There had been a former trial of this action in the same court, in which one William F. Woolsey had testified as a witness for plaintiff. Upon this trial, on proof that this witness was about 200 miles distant from the place of trial but without proof of any effort to procure his attendance, or that it was not practicable to have obtained his testimony by deposition de bene esse, or otherwise, as provided in Rev. St. U.S. Secs. 863-867 (U.S. Comp. St. 1901, pp. 661-664), the plaintiff offered the testimony of this witness given on such former trial to be read from the stenographer's notes. Defendant objected to the same as incompetent. The court overruled the objection and admitted the evidence, and the defendant duly excepted. This ruling was erroneous.

The Supreme Court has held repeatedly that the provisions of the Revised Statutes as to the mode of proof in actions at law form a complete system, and that every case must fall under the general rule or the exceptions there specified, and that no state legislation can add to or take from the methods of procuring evidence so provided. Ex parte Fisk, 113 U.S. 713, 723, 5 Sup.Ct. 724, 28 L.Ed. 1117; Union Pac. Co. v. Botsford, 141 U.S. 250, 11 Sup.Ct. 1000, 35 L.Ed. 734; Hanks Dental Ass'n v. Tooth Crown Co., 194 U.S. 303, 307, 24 Sup.Ct. 700, 48 L.Ed. 989.

The general provision of the Revised Statutes is as follows:

'Sec. 861. The mode of proof in the trial of actions at common law, shall be by oral testimony and examination of witnesses in open court, except as hereinafter provided. ' (U.S. Comp. St. 1901, p. 661.)

The exceptions in respect to circumstances under which testimony may be taken by deposition, etc., are stated in the sections which follow the one above quoted. Speaking of these exceptions, Mr. Justice Miller says (113 U.S. 724, 5 Sup.Ct. 729, 28 L.Ed. 1127):

'These are the exceptions which the statute provides to its positive rule that the mode of trial in actions at law shall be by oral testimony and examination of witnesses in open court. They are the only exceptions thereinafter provided. Does the rule admit of others? Can its language be so construed?

'On the contrary, its purpose is clear to provide a mode of proof in trials at law to the exclusion of all other modes of proof; and because the rigidity of the rule may, in some cases, work a hardship, it makes exceptions of such cases as it recognizes to be entitled to another rule, and it provides that rule for those cases.

'Under one or the other all cases must come. Every action at law in a court of the United States must be governed by the rule or by the exceptions which the statute provides. There is no place for exceptions made by state statutes. The court is not at liberty to adopt them or to require a party to conform to them.'

None of the exceptions allows as evidence the testimony of a witness given at a former trial of the case; and Mr. Justice Miller at page 723, 113 U.S., page 728, 5 Sup.Ct. (28...