97 A. 555 | N.H. | 1916
The plaintiff's claim at the trial was that the fire was set by sparks thrown off by the defendant's engine No. 885 while passing the plaintiff's premises, May 28, 1914. The defendant insisted that the spark-arrester used on that engine at that time was so constructed as to render it improbable that live sparks were emitted from the smokestack. The issue there raised related to the liability of sparks to escape from the designated engine at the time of the fire. Upon this issue the burden was upon the plaintiff to make it appear more probable than otherwise that its theory was the correct one. One way of sustaining this burden was to show that other similar engines equipped with similar spark-arresters and burning similar coal had thrown off sparks within a short time of the fire in question, when moving in that vicinity, and that fires had resulted. It can hardly be denied that such evidence has some bearing upon the issue involved; for it tends to increase the probability that the engine, which it is claimed set the fire, was liable to throw off sparks when in operation. It is in fact what is sometimes termed experimental evidence. Darling v. Westmoreland,
In Cook v. New Durham,
In accordance with this general theory of the admissibility of experimental evidence, it was held in Smith v. Railroad,
In the present case the ruling of the court to which exception was taken by the defendant was in effect that as a matter of law it was relevant, and that as a matter of fact it was not too remote or inherently too inconclusive to be useful as evidence. The court's *97
exercise of discretion in admitting the evidence was based upon the similarity of the construction of the engine, the kind of spark-arresters, the kind of coal used in them, the times and places when and where they were claimed to have set the fires. This evidence of the conditions existing at the times when sparks were emitted by the several engines cannot be held as a matter of law to be insufficient to authorize the finding of fact that it might be of some legitimate use to the jury. In Smith v. Railroad, supra, evidence of the same character was in effect held to be sufficient to warrant the submission to the jury of the evidence relating to the other fires. See also Boyce v. Railroad,
The claim of the defendant is that the court erred in admitting the evidence of other fires, presumably set by other engines in the absence of direct evidence that their spark-arresters were in the same state of repair as the one in engine No. 885, which was exhibited to the jury, and that the conditions under which they were working were the same as the specified engine was working under the time it is alleged to have set the fire. While these facts, if proved, would undoubtedly tend strongly to support the plaintiff's contention and make it appear probable that the fire was set in the way the plaintiff claimed it was set, the absence of such evidentiary facts does not conclusively show that the court was not justified in finding from the other evidentiary facts that the conditions attending the fires were substantially similar, so that the evidence of the *98 other fires might be of some value. The defendant was not precluded from showing that the conditions were dissimilar.
The court in the trial of a case of this character is not bound to anticipate all possible facts bearing on the question of similarity of conditions, which often would be very numerous. If they are not specifically called to the attention of the court at the trial, justice requires that they should not be insisted upon after the verdict. An examination of the record shows the defendant did not specifically base its exception on the grounds now insisted upon viz., the want of evidence of similarity in the state of repair of the spark-arresters and the kind of work the engines were doing. The only grounds stated for the exception at the trial in response to the court's inquiry were, that the fire occurred at different places and that there was no evidence as to similarity of conditions. The court's attention was not called to the special objections which are now urged, in regard to the state of repair of the spark-arresters and the operation of the engines. The reason given for claiming an exception was so general as not to indicate these special reasons to the court. If they had been stated, a different ruling might have been made, or the plaintiff might have presented evidence upon the points suggested, or have withdrawn the questions objected to. The language of the court in Managle v. Parker,
The fact that the fires were set at different places along the line of the defendant's road-bed does not render the evidence that they were set by other engines incompetent when there was evidence of the general similarity of the engines, of the spark-arresters, and of the fuel burned. The fact that the specified engine had the capacity to emit sparks when in operation might reasonably be found.
Defendant's exception overruled.
All concurred. *99