280; Chapin v. Dobson, 78 N. Y. 74, 34 Am. Rep. 512. These cases were cited as declaring the law of the state. The last case was directly in point in favor of the admissibility of the evidence. The Supreme Court, however, treated the question as one of general law, and refused to follow the local decisions. It based its ruling not only on previous decisions of its own, but on the decisions of other states in which the strict rule on the subject had been enforced, citing Naumberg v. Young, 44 N. J. Law, 331, 43 Am. Rep. 380; Thompson v. Libby, 34 Minn. 374, 26 N. W. 1. The burden of proof on the issue of contributory negligence is clearly defined in the federal courts. On that subject, however, there is a clear conflict among the different states. In Chicago Great Western Ry. Co. v. Price, 97 Fed. 423, 38 C. C. A. 239, state decisions are held not to be controlling upon the federal courts. This court there said: "The rule of the federal courts is settled and uniform that contributory negligence is an affirmative defense which must be established by a preponderance of evidence, and this requirement is not changed by the fact that a different rule prevails in the courts of the state where the cause of action arose." In that case the accident occurred in Illinois, and the action was brought in Iowa. In both of those jurisdictions the rule prevails that the plaintiff in a personal injury case is bound to prove his freedom from contributory negligence. Missouri Furnace Co. v. Abend, 107 Ill. 44, 47 Am. Rep. 425; Burns v. Chicago, etc., R. R. Co., 69 Iowa, 450, 30 N. W. 25, 58 Am. Rep. 227. This court, however, refused to follow those decisions. The federal rule has been applied in Indiana, in contravention to the decisions of that state. Wabash, St. L. & P. R. Co. v. Central Trust Co. (C. C.) 23 Fed. 738; Indianapolis, etc., R. Co. v. Horst, 93 U. S. 291, 23 L. Ed. 898. The same is true of Massachusetts. Fitchburg R. Co. v. Nichols, 85 Fed. 945, 29 C. C. A. 500. These illustrations might easily be multiplied. Sufficient, however, has been adduced to show the settled practice of the federal courts. A somewhat careful examination has failed to discover any instance in which a federal court has treated a local decision on a question of evidence as a rule of law of controlling force in opposition to a decision of the Supreme Court of the United States. Such a practice would, in our judgment, result in unnecessary labor and perplexity for federal judges in the trial of causes. It is the duty of such judges to be familiar with the decisions of the national courts. The rules of evidence are a part of the law that must in the main be carried in the mind of the trial judge. Such questions constantly recur, and must be promptly decided. To take time for argument and investigation would tediously prolong the trial. If those judges were compelled to keep track of local decisions and decide, perhaps, how far they vary from the decisions of appellate federal courts, their labors would be doubled, and the progress of the trial greatly impeded. These considerations receive added force at the present time from the fact that federal judges are so frequently called upon to sit in states other than their own. Again, local statutes and local rules of property, when involved in suit, are presented once and for all, and thus permit of argument and full consideration. Such is not the case with questions of evidence. They are multiform, and generally not dependent upon the issues involved. For these reasons, we are satisfied that the practice which has heretofore obtained in federal courts is a sound practice, and that local decisions on questions of evidence ought not to constitute authoritative rules binding upon those courts. If, therefore, the question involved in the present case be regarded as a question of evidence, we are of the opinion that the decision of the Supreme Court in Union Pacific v. Botsford, 141 U. S. 250, 11 Sup. Ct. 1000, 35 L. Ed. 734, is binding upon federal courts, and, if applicable, should be the rule of decision in the present case, notwithstanding the decision of the Supreme Court of Iowa in Schroeder v. Chicago, R. I. & P. R. Co., 47 Iowa, 378. Is the Botsford decision controlling of the present case? The defendant there, in advance of the trial, applied to the court for an order requiring the plaintiff to submit to a surgical examination. The application was denied, and that ruling constituted the question which was before the Supreme Court for review. That court has already limited the Botsford decision in Camden Railway Co. v. Stetson, 177 U. S. 172, 20 Sup. Ct. 617, 44 L. Ed. 721. The decision is at variance with a large majority of the state courts. The rule which it declares has been abrogated by statute in many jurisdictions where it once prevailed. This is the case in New York, New Jersey, Great Britain, Canada, and Australia. We do not feel, therefore, disposed to extend the decision beyond the facts there involved. In the present case we are not dealing with an application for a surgical examination in advance of the trial. Here the plaintiff at the trial voluntarily exhibited his knee in open court for inspection. Having done this, it was beyond his power to arrest the investigation. The defendant and the court were entitled to employ any agency in its examination which would aid in the determination of the issue on trial. It is universally held that, where an inanimate object is produced upon the trial of a case, it is subject to any legitimate examination and test which will elucidate the matter in dispute. It may be submitted, for example, to chemical treatment, or to examination by the microscope. Simply looking at the plaintiff's knee with the eye of a layman furnished little aid in determining its condition. He himself maintained that there were no external evidences of injury. Whether there were hidden ailments could only be discerned by the skill of a surgeon, and the defendant and the court were as much entitled to turn the eye of a surgeon upon the plaintiff's knee as they would have been to look at a blood stain through a glass. Having exhibited his knee to the jury, it became a part of the evidence in the case, and the mere accident that the thing exhibited was part of a human body could only qualify, and not defeat, the right of complete investigation. Chicago, Rock Island & Pac. Ry. Co. v. Langston, 19 Tex. Civ. App. 568, 47 S. W. 1027, 48 S. W. 611; Haynes v. Trenton, 123 Mo. 326, 27 S. W. 622. Whether the defendant in a personal injury case, when the plaintiff takes the stand and testifies in his own behalf, to his injuries, is en titled to an exposure and examination of the injured member as a part of the cross-examination, and whether upon the trial of such an issue the defendant may call the plaintiff as a witness, and while he is under examination compel such a disclosure and inspection of the injured member, are questions not presented by the present case, and are not, therefore, necessary for decision. See Larson v. Salt Lake City (Utah) 97 Pac. 483. We think the court erred in its ruling refusing to compel the plaintiff to submit his knee to surgical examination, and for this error the cause is reversed, with directions to grant a new trial. SANBORN, Circuit Judge (concurring). I concur in the result in this case, for the reasons stated in the foregoing opinion, and for the further reason that in my opinion the United States Circuit Court, sitting in a state where such is the practice and mode of proceeding in the state courts, is invested with the power by the conformity act (section 914, Rev. St.) to require one who brings an action at law for his personal injuries to submit his person to a physical examination by suitable physicians or surgeons, to qualify them to testify to the extent of his injuries. An instructive and rational change of opinion in regard to this subject is portrayed by the decisions of the Supreme Court pertinent to the question. In 1884, in Ex parte Fisk, 113 U. S. 713, 724, 5 Sup. Ct. 724, 28 L. Ed. 1117, that court held in a unanimous opinion that although the state of New York authorized a litigant to take the testimony of his adversary before the trial, and although such was the practice in the courts of that state, the federal Circuit Court had no power to take such testimony, because sections 861, 863-870, Rev. St. (U. S. Comp. St. 1901, pp. 661-665), prescribed the only method of procuring evidence in actions at law in the courts of the United States, and excluded all other modes provided by the statutes of the states or the practice of their courts. In 1890, in Union Pacific Railway Company v. Botsford, 141 U. S. 250, 256, 11 Sup. Ct. 1000, 1003, 35 L. Ed. 734, an opinion was rendered by a divided court, two judges dissenting, that a federal Circuit Court sitting in state wherein there was no statute and no practice or mode of proceeding in the state courts permitting it had no authority to require a plaintiff in an action for his personal injury to submit to a physical examination by physicians before the trial, because (1) "this is not a question which is governed by the law or practice of the state in which the trial is held," (2) because, as held in Ex parte Fisk, the provisions of sections 861, 863, et seq., Rev. St., were exclusive, (3) because any such law or practice would be unconstitutional, and (4) because the person of such a plaintiff was too sacred. In the year 1900, in Camden Railway Company v. Stetson, 177 U. S. 172, 20 Sup. Ct. 617, 44 L. Ed. 721, by a decision in which the minority in the last case were of the majority, and in which one of the majority in the last case was the minority, the Supreme Court held that a federal Circuit Court, sitting in a state in which the courts of the state were empowered by a state statute to compel the person in jured to submit, at or before the trial of an action for his injury, to a physical examination by physicians or surgeons, had like power by virtue of the state statute and section 721 of the Revised Statutes. That court thereby necessarily held, contrary to the decisions in Ex parte Fisk and in the Botsford Case, (1) that this is a question which under sections 721 and 914, Rev. St., is governed by the law or practice of the state in which the trial is held; (2) that the provisions of sections 861, 863, et seq., Rev. St., are not exclusive, but other practices and modes of procedure to obtain evidence may be pursued by the federal courts under state law or practice; (3) that a law or practice which empowers a federal court to compel such an examination is not unconstitutional; and (4) that the person of one injured which is not too sacred to be made the subject of an action for the recovery of damages for the injury is not too sacred to be made the subject of an examination by suitable professional gentlemen to ascertain and prove the truth regarding the injury. In that case the Supreme Court, speaking of the order that the plaintiff should submit to an examination of his person by physicians or surgeons before the trial, said: "It is settled in this court that no power to make such an order exists at common law; in other words, the court has no inherent power to make it. Union Pacific Railway Company v. Botsford, 141 U. S. 250, 11 Sup. Ct. 1000, 35 L. Ed. 734." That is to say, as I understand it, that in the absence of a state law adopted by section 721, or of a state practice or mode of procedure which the federal court is empowered and directed by section 914 to follow, such a court has no inherent power to order the physical examination of the injured person in an action before it for the injury. And this, it seems to me, is all there is left of the Fisk and Botsford Cases since the decision in the Camden Case, 177 U. S. 172, 20 Sup. Ct. 617, 44 L. Ed. 721. That decision certainly is that where there is a state statute which authorizes the courts of the state to compel such an examination, section 721, Rev. St., which makes the laws of the state rules of decisions in trials at common law in the national courts, empowers those courts to compel such examinations. By the same mark, where the practice and mode of proceeding in the state courts to qualify witnesses, to give truthful testimony regarding an injury to the person, which is the subject of an action, are to require such persons to submit to such an examination, section 914, Rev. St., which requires that the practice and modes of proceeding in a national court in such cases shall conform as near as may be to the practice and modes of proceeding in like causes in the courts of the state in which such federal court is held, grants plenary power to the national court to direct the injured person to submit to an examination by proper physicians or surgeons. It is true that section 914 does not compel the federal courts to adopt methods of practice or modes of proceeding existing in the state courts "which in their judgment would unwisely incumber the administration of the law, or tend to defeat the ends of justice in This their tribunals." Indianapolis & St. Louis R. R. Co. v. Horst, 93 U. S. 291, 23 L. Ed. 898. But it empowers them to do even that, and, with that exception, it requires them to conform their practice and modes of proceeding "to the practice * * * and modes of proceeding existing at the time in like causes in the courts of record in the state within which such Circuit or District Courts are held." case does not fall within the exception, because it would not unwisely incumber, but would facilitate, the administration of the law, and it would not tend to defeat, but it would tend to accomplish, the ends of justice, to require one who submits his person to the examination of physicians, to qualify them to testify in his behalf, to submit it also to the examination of like witnesses to qualify them to testify to the truth on behalf of the defendant. This case falls under the general rule, and section 914 gave the court below ample authority to compel the examination. Nor does there seem to me to be any material question in this case relative to the power at common law of any court, state or federal, to compel a person injured to submit to such an examination of his person in an action for his injury. Let the fact be conceded that the Supreme Court was right, and the Supreme Court of Iowa was wrong, in the decision of that question (Union Pacific Railway Co. v. Botsford, 141 U. S. 250, 11 Sup. Ct. 1000, 35 L. Ed. 734; Schroeder v. Chicago, Rock Island & Pacific Ry. Co., 47 Iowa, 378); nevertheless the decision of the Supreme Court of Iowa, though erroneous, was within its jurisdiction, and it conclusively established the practice and the mode of proceeding to qualify witnesses to give testimony, and to procure evidence in the courts of that state in cases of this character. Congress had the same power to authorize and require the federal courts to conform their practice and modes of proceeding in such cases to the practice and modes erroneously, as to those correctly, existing in the state courts, and it exercised that power. It might have enacted that the national courts should conform their practice and modes of proceeding to the practice and modes of proceeding rightly adopted by the state courts, but it did not do so. It empowered and required the United States Circuit Courts to conform their practice and modes of proceeding in actions at law to the practice and modes of proceeding existing at the time (whether rightly or wrongly adopted) in the courts of the state in which they were sitting. There is no doubt that the practice and mode of proceeding existing at the time in like causes in the courts of the state of Iowa were to require the injured party to submit his person to the examination of suitable physicians and surgeons to the end that the truth might be discovered and proved (Schroeder v. Chicago, Rock Island & Pacific Ry. Co., 47 Iowa, 378), and in my opinion section 914 empowered and required the federal Circuit Court sitting in that state to follow that practice and mode of proceeding. This conclusion conforms the practice in such cases to the general rule that: "A party forfeits nothing by going into a federal tribunal. Jurisdiction having attached, his case is tried there upon the same principles, and its |