Oregon-American Lumber Co. v. Simpson

• Citation: 8 F.2d 946
• Decision Date: 16 November 1925
• Docket Number: No. 4680.,4680.
• Parties: OREGON-AMERICAN LUMBER CO. v. SIMPSON et al.
• Court: U.S. Court of Appeals — Ninth Circuit

8 F.2d 946 (1925)

OREGON-AMERICAN LUMBER CO. v. SIMPSON et al.

No. 4680.

Circuit Court of Appeals, Ninth Circuit.

November 16, 1925.

W. Lair Thompson and Ralph H. King, both of Portland, Or., for plaintiff in error.

Lord & Moulton, of Portland, Or., for defendants in error.

Before GILBERT, HUNT, and RUDKIN, Circuit Judges.

GILBERT, Circuit Judge (after stating the facts as above).

The defendant in error moves to strike out the bill of exceptions on the ground that it fails to comply with rule 4 of the Supreme Court Rules, adopted December 22, 1911, which requires that only so much of the evidence shall be embraced in the bill of exceptions as may be necessary to present clearly the questions of law involved in the rulings to which exceptions are reserved, and such evidence as is embraced therein shall be set forth in condensed and narrative form, save as a proper understanding of the questions presented may require that parts of it may be set forth otherwise. While bills of exceptions which unnecessarily set out the stenographer's transcript of the testimony have been disapproved, Wheeling Terminal Ry. Co. v. Russell, 209 F. 795, 126 C. C. A. 519; Rosen v. United States (C. C. A.) 271 F. 651, the courts have declined to strike them out, First Nat. Bank v. Moore, 148 F. 953, 78 C. C. A. 581; National Masonic Acc. Ass'n v. Shryock, 73 F. 774, 20 C. C. A. 3; Chicago G. W. Ry. Co. v. Price, 97 F. 423, 38 C. C. A. 239.

There is especial ground for so ruling in a case such as the case at bar, where the only point submitted is that there is no evidence to support the verdict, for in such a case the bill of exceptions must affirmatively show that it contains all the testimony produced at the trial. Elliott v. Canadian Pac. Ry. Co., 161 F. 250, 88 C. C. A. 286. And while it might be preferable to present the evidence in narrative form, the failure to do so should not be held ground for denying relief on the question of error so brought for review. The motion is denied.

The plaintiff in error relies upon the assignment of error that the court denied its motion for a directed verdict in its favor, the motion having been made upon the ground that the plaintiffs in the action had offered no evidence to establish the charges of negligence alleged in the complaint, or to show that the negligence charged was the direct and proximate cause of the accident. It is earnestly contended that the record is barren of evidence to show that the valves, whereby were operated the dead rolls used for the purpose of subjecting pressure upon the lumber while it was being sawed, were defective. It is true that the evidence upon that subject is meager...