Wheeling Terminal Ry. Co. v. Russell

• Decision Date: 08 December 1913
• Docket Number: 1,144.
• Citation: 209 F. 795
• Parties: WHEELING TERMINAL RY. CO. v. RUSSELL.
• Court: U.S. Court of Appeals — Fourth Circuit

209 F. 795

WHEELING TERMINAL RY. CO. v. RUSSELL.

No. 1,144.

United States Court of Appeals, Fourth Circuit.

December 8, 1913

[Copyrighted Material Omitted]

J. B Sommerville, of Wheeling, for plaintiff in error.

John J P. O'Brien and John A. Howard, both of Wheeling, for defendant in error.

Before KNAPP and WOODS, Circuit Judges, and ROSE, District Judge.

ROSE District Judge.

Section 2 of rule 10 of this court (193 F. vii, 112 C.C.A. vii) directs that:

'Only so much of the evidence shall be embraced in a 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 be set forth otherwise.'

In this case the entire transcript of the stenographer's trial notes has been included in the bill of exceptions. No part of the evidence, no matter how formal or undisputed, has been reduced to narrative form. Every question and every answer is reproduced in full. Colloquies between counsel or with the court, statements that the jury retired from the court or returned to it, and such like matters are found in it, although in most, if not all, cases they have no bearing on any question which can be considered by us.

The rule which has been quoted above was adopted after full consideration. It is believed that compliance with it will not only save useless printing but will enable the court much more intelligently to pass upon the real issues involved. We know that counsel are usually busy. Some time may be saved by turning over the preparation of the bills of exception to stenographers and clerks. Such saving may not, after all, be worth what it costs. It is not impossible that some writs of error would not be sued out at all if counsel took the trouble to extract from the stenographer's notes the precise points upon which they must rely. In almost all cases such a preliminary analysis would make the work of brief making and of oral argument both easier and more effective. The court must require compliance with the rule.

In the case at bar it will be well to designate the parties as they were in the trial court. That is, we will speak of the plaintiff in error here as the defendant; the defendant in error as the plaintiff.

The defendant is a West Virginia corporation. It is engaged in interstate commerce. It operates a switching or terminal railroad which extends from Martins Ferry, Ohio, to Benwood W.Va. The plaintiff is a citizen of Ohio. He was employed by the defendant as a brakeman on freight trains. In the regular course of its business it had delivered to a consignee in West Virginia sundry loaded cars which had come from points outside of the latter state. These cars had been unloaded. The defendant sent a train to take them back. The plaintiff was one of the crew of such train. On the switch on which these cars were there were scales. The loaded cars had been weighed at the time of delivery. In order to determine the net weight of their contents, the cars had to be weighed after they had been emptied. Such weighing was habitually done by defendant's train crew. For this purpose the engine backed one car after another upon the scales. The last car on the train was the first to go upon them. When it was placed in position upon them it was uncoupled. The engine moved slightly forward. When the car had been weighed, the engine backed the next car down upon it so as to push or kick it off the scales and to put the other in its place. In order that it should not be reunited to the train before the next car had been weighed, the practice was to close the knuckle on either the forward coupler of the first car weighed or on the rear coupler of the car next to it. Such closing of course prevented the automatic coupling which would otherwise have taken place. The process described was repeated until all the cars in the train, or as many of them as it was desired to weigh, had been weighed. The knuckles which had been closed were then reopened. The locomotive and tender, together with such cars, if any, as had not been uncoupled from them, were backed down upon the other cars. As they were pushed back one upon the other they coupled automatically by impact and the train was made up. On the occasion now in question, the train was composed of a locomotive and its tender, of three or four loaded cars placed next to the tender, and of six empty cars. The latter had been weighed. The process of recoupling had progressed to the point at which four of the empties had been recoupled. The train had been once or twice pushed down on the next to the last car. The latter moved along the track but did not couple. Plaintiff said he found the trouble was with the rear coupler on the third car from the end; that is, on the rear coupler of the last car which had up to that time been recoupled to the train. He tried to get the coupler to work by using the lever at the side of the car provided for the purpose. He did not succeed. He told the conductor not to move the train. ...