TEXAS & P RY. CO. v. REAGAN et al., 118 F. 815

PARDEE, Circuit Judge (after stating the facts as above). The first assignment of error is based on the admission in evidence of Daily’s deposition taken de bene esse. The objection was that at the time of offering the plaintiff did npt show that the witness was not within ioo miles of the place where the court was held, or, if within the xoo miles, was unable to attend.

The statute authorizing the taking of depositions de bene esse provides as follows: “But unless It appears to the satisfaction of the court that the witness is then dead, or gone out of the United States, or to a greater distance than one hundred miles from the place where the court is sitting, or that, by reason of age, sickness, bodily infirmity, or imprisonment, he is unable to travel and appear at court, such deposition shall not be used in the cause. Kev. St. § 865 [U. S. Comp. St. 1901, p. 663].” As far back as Insurance Co. v. Southgate, 5 Pet. 604, 8 L.

Ed. 243, it was held that where the witness resided over 100 miles from the court at the time of taking the deposition the inhibition of the statute did not apply, the witness being considered beyond a compulsory attendance. In Whitford v. Clark. Co., 119 U. S. 522, 7 Sup. Ct. 306, 30 L. Ed. 500, the supreme court cite Insurance Co. v.

Southgate, supra, with approval, and lay down the rule as follows: “It thus appears to have been established at a very early date that depositions taken de bene esse could not be used in any case at the trial if the presence of the witness himself was actually attainable, and the party offering the deposition knew it or ought to have known it. If the witness lives more than one hundred miles from the place of trial, no subpoena need be issued to secure his compulsory attendance.

So, too, if he lived more than one hundred miles away when his deposition was taken it will be presumed that he continued to live there at the time of the trial, and no further proof on that subject need be furnished by the party offering the deposition, unless this presumption shall be overcome by proof from the other side.” When Daily’s deposition was taken he lived at Two Harbors, Minn., more than 100 miles from the court. There was no presumption nor proof that he had since come within 100 miles of the court.

The second assignment of error complains of the charge of the trial judge to the effect that the burdén of proving that the deceased was guilty of contributory negligence was upon the defendant. If there is error in this charge, then it seems clear that the defendant below should have asked for an instructed verdict, because the issue of contributory negligence was in the case, and there was no evidence in the case to show that the deceased was not guilty of contributory negligence or even in the exercise of due care.

Counsel for the plaintiff in error conceded the general rule in the United States courts that the burden of proof in cases involving contributory negligence to be as given by the judge in this case, but he claims that there are exceptions to the rule just as well established. He cites Railroad Co. v. Barrett, 166 U. S. 617, 17 Sup. Ct. 707, 41 L. Ed. 1136, which furnishes no exception to the rule, but correctly holds that the burden of proving direct negligence on the part of the railroad company’s employés was upon the plaintiff. He also cites Corcoran v. Railroad Co., 133 Mass. 507; Riley v.

Railroad Co., 135 Mass. 292; Railway Co. v. Crowder, 63 Tex. 502; Id., 76 Tex. 499, 13 S. W. 381; McCray v. Railway Co., 89 Tex. 168, 34 S. W. 95; Railway Co. v. Murphy, 46 Tex. 356, 26 Am. Rep. 272; and Railway Co. v. Hester, 72 Tex. 40, 11 S. W. 1041. An examination of these cases will show that, in the particular case then in hand, it was held that an employé seeking to recover damages against the railway company was required to prove that at the time of the injury he was in the exercise of,due care; and in relation to this it may be noticed that in Riley v.

Railroad Co., supra, it was held that the plaintiff could be excused from proving that the deceased was in the exercise of due care where death was instantaneous. The rule declared in Railway Co. v. Murphy, supra, is: “It is often stated that the plaintiff must show that the injury was caused by the negligence of the defendant, without any fault or negligence on his part.

It would be more correct, it is thought, to say that the plaintiff must show that the injury of which he complains was produced by the negligent acts of the defendant, under such circumstances as did not develop any negligence on his part, contributing to his injury.

In the absence of proof, his negligence would not be presumed.” However the rule may be with regard to proving due care, we are of opinion that in this case the specific contributory negligence.which was charged to have proximately contributed to the death of- the deceased, and without which it would not have occurred, was active negligence, to wit, in giving a wrong signal. This issue was presented by the defendant, and it was not to be expected, nor perhaps possible in the nature of things, that the plaintiff could prove a negative for the deceased whose death was instantaneous.

We think there can be no doubt that, under the circumstances and pleadings in this case, the charge complained of was in all respects correct. The judgment of the circuit court is affirmed.