Hood v. Chi. & N. W. Ry. Co.

• Decision Date: 01 October 1895
• Citation: 95 Iowa 331,64 N.W. 261
• Court: Iowa Supreme Court
• Parties: HOOD v. CHICAGO & N. W. RY. CO.

95 Iowa 331

64 N.W. 261

HOOD

v.CHICAGO & N. W. RY. CO.

Supreme Court of Iowa.

Oct. 1, 1895.

Appeal from district court, Pottawattamie county; Walter I. Smith, Judge.

Plaintiff commenced this action July 2, 1891, to recover damages for personal injuries alleged to have been sustained by him on or about August 30, 1889, when a passenger on one of defendant's passenger trains, because of certain negligent acts and omissions of the defendant's employés. He alleges that in consequence thereof, and without fault on his part, he was seriously and permanently injured in certain particulars stated, from which injuries he has ever since suffered great bodily pain and mental anguish. He further alleges that previous to the time of such injuries he was in good health, and was a physician enjoying a large and remunerative practice at Independence, Kan., but since receiving said injuries, and by reason thereof, he has been incapable of attending to his said practice, and has been subject to great loss of time, and has incurred large expense. He asks to recover $40,000. The defendant answered, denying all the allegations of the petition. The cause was tried to a jury, and verdict returned for the defendant. Plaintiff's motion for a new trial was overruled, and judgment rendered on the verdict on the 18th day of December, 1892, from which judgment the plaintiff perfected an appeal on the 10th day of June, 1893. On the 12th day of November, 1894, the defendant filed a motion in said district court to strike from the files and record the certificate of the judge attached to the reporter's shorthand notes in the case, signed and filed on the 28th day of October, 1892, and also to strike certain parts of said certificate for reasons stated. This motion was supported by the affidavit of the attorneys for defendant appearing in the trial, and by a letter written by the reporter. On December 1, 1894, this motion was overruled, to which the defendant excepted, and from which ruling on December 14, 1894, an appeal was perfected by the defendant. On January 11, 1895, the defendant filed a motion in this court to strike the bill of exceptions and said certificate of the trial judge, and to strike certain parts from said certificate. This motion is upon the same grounds as that filed in the district court. Reversed.Sims & Bainbridge, for appellant.

Hubbard & Dawley and Wright & Baldwin, for appellee.

GIVEN, C. J.

1. We first consider the case as presented on defendant's appeal and upon the motion filed in this court. As they present the same questions, they will be considered together. The record shows the following: After the conclusion of the evidence, and on the day the case was submitted to the jury, the trial judge signed a certificate appended to the official shorthand notes of the trial, wherein he certified in substance as follows: That said notes were the official report of the trial, taken by the official reporter, and that “the same contain all the evidence offered and all the evidence introduced on the trial of said cause, together with the objections of parties to the introduction of evidence, the rulings of the court thereon, and exceptions of parties to such rulings, as fully and to the same effect as said evidence, objections, rulings, and exceptions were introduced, had, and taken at the trial of said cause, and said official report is hereby signed by me, and certified to and ordered filed, and made a part of the record in this case.” On the same day said notes thus certified were filed with the clerk of said court. On July 8, 1893, there was also filed with said clerk an extension of said notes, certified by the official reporter as containing a full, true, and complete translation of the shorthand notes of the evidence taken by him on the trial of the case. The grounds of defendant's motion in the district court and in this court are that there is no authority for the certification of said notes by the trial judge; that said certification was made without notice to and without knowledge or request of either party; that the transcript of said notes contains inaccuracies as shown by said affidavit; that said transcript shows that said notes do not contain all the evidence introduced and offered, in that the depositions offered and read, and other documentary evidence, are not annexed thereto, nor sufficiently identified therein. Said affidavit of defendant's counsel shows that no bill of exceptions was ever presented to them for examination, or approved; that plaintiff did not take time to prepare a bill of exceptions; that affiants had no notice that plaintiff intended to file a bill purporting to contain all the evidence, and did not know, until the abstract was served in March, 1894, that any such bill of exceptions had been filed. They further say that there are inaccuracies in the record, which they would have corrected if said bill of exceptions had been presented to them before it was settled; that they cannot correct such inaccuracies now from memory. They say that the official reporter was unable at all times to report the more rapid portions of the testimony with entire accuracy, for the reason that he was suffering severely from an attack of neuralgia in the face and jaw. They attach as part of their affidavit a letter from the reporter, in which he says: “In all my experience in reporting I never received such an electrical shock as when I undertook to make a transcript in this case. The fact is, I should not have tried to report this case, suffering as I was and did during the whole trial with the jaw ache.” Fleming v. Stearns, 79 Iowa, 257, 44 N. W. 376, answers defendant's first contention. Following cases cited, it is said: “That where the shorthand report is ordered to be made a part of the record, and a certificate of the judge in due form is attached, the evidence is sufficiently preserved.” It was held that the report thus certified constituted a bill of exceptions within the requirements of the statute. This report of the evidence being thus made a part of the record, no other or different bill of exceptions was required, as in case of decisions not entered on the record. See Code, § 2835. As to such report of the evidence, no notice is required to the parties before certifying the same. If there were decisions not entered on the record, or grounds of objections not sufficiently appearing in the record as presented in the report, the defendant should have caused the same to be made of record in the manner provided in said section 2835. Reports of trials taken in shorthand are seldom, if ever, entirely perfect. Great as is the skill acquired in this kind of writing, it is a well-known fact that more or less inaccuracies are found in the reports; but...