96 N.W. 305 | N.D. | 1903
Plaintiff’s action is to recover damages for the •destruction, by fire, of certain hay and straw stacked near thieelevator of defendants. The fire caught from cinders blown into the stacks from the burning elevator of defendants.
The evidence does not disclose the cause or “origin of the fire which destroyed appellant’s elevator. This is left entirely to speculation and conjecture. At 2 o’clock on the day of the fire, defendant’s agent, Longbolle, mended the elevator chain. He operated the machinery from 2 until 5 :30 p. m. The fire was discovered in or near the elevator pit about 6 :30 or 7 o’clock p. m.
The plaintiff relied upon the declaration of the servant, Longbolle, to establish how the fire started, and that it was the result of negligence. Neis Peterson, a witness for the plaintiff, testified, in effect, that during the burning of the building he had a conversation with Mr. Longbolle, the agent, as to how the fire occurred. “Q. You may state that conversation to the jury.” This question was seasonably and properly objected to. The objection was overruled, and the witness, over exception, answered: “A. I asked the agent how this fire come; he answered me. He said, T tightened up the chain; the fire must have> come that way.’ So I said what he done it for. ‘Well,’ he said, ‘the chain would not stay on; it makes me mad’; so he tightened it up, maybe too tight.” The objection to this testimony should have been sustained. It was hearsay, and not a part of the res gestae.
It is contended by counsel for respondent that the declaration ■of the agent in this case was made while the fire was burning, and was" to the effect that the fire was caused by his negligence; that the act to be illustrated was the cause of the fire, and, if the fire was •caused by friction induced by the negligence of Longbolle in operating the machinery with the elevator chain at extraordinary tension,
Declarations of an agent, to bind the principal, must have been made during the continuance of the agency in regard to a transaction then depending, et dum fervet opus. It must be in the nature of a verbal act. To be received in evidence, such declarations must .appear to have been voluntarily and spontaneously made under the immediate influence of the principal transaction, and be so connected with it as to characterize or explain it, and made under such circumstances as to exclude the possibility of a design to misstate the facts. Short v. Elev. Co., 1 N. D. 163, 45 N. W. 706. In Lund v.Tyngsborough, 9 Cush. 36, the Supreme Court of Massachusetts discussed at some length when declarations may be considered .as part of the res gestae and are admissible as original evidence. It is there said: “When the act of the party may be given in evidence, his declarations, made at the time, and calculated to elucidate and explain the character and quality of the act, and so connected with it as to constitute one transaction/ and so as to derive credit from the act itself, are admissible in evidence. The credit which the act or fact gives to the accompanying declarations as a part of the transaction, and the tendency of the contemporary declarations, as a part of the transaction, to explain the particular fact, distinguish this class of declarations from mere hearsay. Such a declaration derives credit and importance as forming a part of the transaction itself, and is included in the surrounding circumstances, which may always be given in evidence to the jury with the principal fact. There must be a main or principal fact or transaction, and only such declarations are admissible as grow out of the principal transaction, illustrate its character, are contemporary with it, and derive some degree of credit from it.” This language was cited with approval by the New York Court of Appeals in Waldele v. Ry. Co., 95 N. Y. 278, 47 Am. Rep. 41, and was cited by this court to sustain its conclusion in Short v. Elev. Co., 1 N. D. 164, 45 N. W. 706. What, then, is the principal transaction, or, in the language of Justice Harlan, in Pierce v. Van Dusen, 24 C. C. A.
Longbolle’s declaration was not a part of the res gestae. At the-time it was made he was not transacting the business of the principal. It did not relate to a transaction depending at the very time..
We conclude that the part of the declaration of Eongbolle concerning the tightening of the chain could not be proven in tnis way. So far we have considered only that part of the declaration as to the tightening of the chain. This was not the entire declaration received in evidence. Its concluding part, to the effect that the fire “must have come that way,” either taken by itself or in connection with what preceded and followed it, was incompetent as a mere expression of opinion, guess, or conjecture of the declarant. Ohio & Miss. Ry. Co. v. Stein (Ind. Sup.) 31 N. E. 180, 19 L. R. A. 751; Lane v. Bryant, 9 Gray 245, 69 Am. Dec. 282; 24 Am. & Eng. Cyc. L. 664 ; Baxter v. Ry. Co. (Minn.) 75 N. W. 1114; Montague v. Ry. Co., (Wis.) 72 N. W. 41; Megow v. Ry. Co., 86 Wis. 466, 56 N. W. 1099; Gainsville, etc., Ry. Co. v. Edmonson (Ga.) 29 S. E. 213. In Ohio, etc., Ry. Co. v. Stein (Ind. Sup.) 31 N. E. 180, 19 L. R A. 751, the engineer of the train causing the injury exclaimed, “If that man last night would have fixed that cylinder cock, you would never have been hurt.” The court said concerning it: “This declaration related to the past, and was a narrative of what had been done at an entirely different time and place. It was, indeed, a combination of an opinion and a narrative of the things that had passed, for it was a statement of the engineer’s opinion that if, on the night before, something had been done which he had then directed, the collision could not have taken place It is too well settled to excuse the reference to authorities that neither narratives of past occurrences nor matter of opinion can be placed before a jury by proving the declarations of an agent or servant.” In Lane v. Bryant, 9 Gray 247, there was a collision between plaintiff’s and defendant’s carriages. Defendant’s driver, at the time of the accident, while plaintiff was being extricated from his carriage, and while the crowd was about, said that the plaintiff was not to blame for what had occurred; but this evidence was declared incompetent, for one reason, because it was only the expression of opinion about a past occurrence, and not a part of .he res gestae. The cause of the fire was not to be proven by opinion evidence, because, from anything appearing in the case, the jury were as capable of forming an opinion on the subject as was Longbolle. Rogers, Exp. Test. Section 5; Kent v. Miltenberger, 15 Mo. App. 480; Railroad Co. v. Schultz, 43 Ohio St. 270, 1 N. E. 324;
Appellants assign error upon the denial of the court of their motion for a directed verdict. The burden of proof was on the plaintiff to establish the cause of the fire* and that it was the result of want of' ordinary care on the part of defendants or their agent. The court so instructed the jury.
Plaintiff in his complaint alleged, as defendants’ negligence, that they operated their elevating machinery when, because of the defective character, improper adjustment, and unusual tension of the elevator chain upon the roller, and the neglect to lubricate the bearings of the same, an intense heat was generated in the bearings by the friction thereon, and the chaff and other inflammable material that defendants had allowed to accumulate about the bearings, coming in -contact with the heated part, took fire. Plaintiff assumed to prove, in support of this allegation, that the fire originated from the friction of the shaft or axle in its bearings igniting inflammable-materials negligently permitted to come in contact with the bearings. Aside from some evidence that the fire was first seen near to or in the pit, and the incompetent conjecture of the agent as to its cause, no evidence was produced by plaintiff as to how the fire started. When plaintiff rested his case he had not furnished any evidence which would have warranted the jury in finding that the elevator chain was operated when it was defective in any way, when it was at an unusual tension, or when it was improperly adjusted; nor was any evidence offered at all that the bearings were not properly lubricated, or that inflammable matter had accumulated around the bearings, or that the fire started in this way. His allegations as to negligence were wholly without support. The defendants offered evidence showing that the bearings were lubricated;, no accumulations of any kind of combustible material in the pit; that there was nothing combustible in contact with the bearings, although the babbitt was encased in wood; that the elevator chain was not
The proofs do not establish by any competent evidence facts sufficient as to the cause of the fire to make a question for the jury’s consideration. The proofs are not inconsistent with or contradictory of any other cause for the fire. If an incendiary had caused the destruction of the elevator building by lighting a fire under it after the agent had gone to supper, the proofs harmonize with this hypothesis as well as with the one assumed by plaintiff. The evidence does not exclude this possibility; neither the chance of accidental fire. On November first there may have been a fire in the elevator, and a coal or cinder may have escaped, causing the destruction of the building; a lighted match or cigar thoughtlessly dropped; a spark from a passing engine; the evidence does not exclude these possibilities.
It is not asking too much of a plaintiff, when he alleges negligence, that he be required to prove it. When he claims damages because of fire, which he avers was started through the neglect to observe due care and caution, his proofs must establish the charge. Mere speculation or possibility will not do. Sheldon v. Ry. Co., 29 Barb. 228; Longabaugh v. Ry. Co., 9 Nev. 296; Smith v. Ry. Co., 37 Mo. 295; Omaha Ry. Co. v. Clark (Neb.) 53 N. W. 970, 23 L. R. A. 509; Kilpatrick v. Richardson (Neb.) 56 N. W. 481; White v. Ry. Co., 1 S. D. 330, 47 N. W. 146, 9 L. R. A. 824. In Sheldon v. Ry. Co., 29 Barb. 228, the court say: “The plaintiff must show that the act or omission of which he complains was the act or omission of the defendant, and also that such act or omission was a negligent one. It is not enough for him to show that the defendant used fire to generate steam; that the locomotive engines running upon the road occasionally emitted sparks of fire and cinders; that his mill was within sixty-seven feet of the track of the road,
One other point remains to be mentioned. Plaintiff alleged negligence in that defendants knew that their elevator was built of inflammable material and was liable to fire, and it negligently omitted to provide buckets, hose, water, and appliances for its ex-tinguishment should fire break out in said building. There was evidence that a barrel about two-thirds full of water was on the lower floor, and another barrel about two-thirds full of water was upstairs in the elevator. There was no well about the building,
We do not decide that defendants were under duty to keep on hand water, hose, and appliances to extinguish fire. Neither do we decide whether, in this case, the circumstances justified the submission of that point to the jury. If, as the uncontradicted evidence shows, the fire could not have been quenched or controlled, nor the burning shingles stopped from falling upon and igniting plaintiff’s stacks, had every reasonable precaution for the arrest and putting; out of the fire been provided and employed, it follows that plaintiff was not in any way damnified by the failure of defendants to keep such appliances on hand, so that what duty defendants were under to maintain fire extinguishers it is unimportant to decide. In McNally v. Colwell (Mich.) 52 N. W. 70, 30 Am. St. Rep. 494, the fire must have run down the docks extending from the mill to the lake, and on which dock the lumber was burned. A fire in the mill would naturally burn the dock and lumber, unless arrested. Under the conditions there shown, and with the ample supply of water at hand, had a means of throwing it upon the dock been provided, the spread of the fire along the dock and to the 'lumber might have been easily prevented, from anything appearing to the contrary. In that case the facts fairly presented the question for the jury whether, had proper appliances been provided, the fire could have been extinguished. In neither this case nor the Louisiana case cited (Hanch v. Hernandez, 41 La. Ann. 992, 6 South. 783) did the proofs show that fire extinguishers would have been un
Exceptions were reserved to the court’s instructions to the jury, but in view of the conclusion at which we have arrived, it is unnecessary to consider them. Our conclusion is that the court erred in overruling defendant’s motion for a directed verdict.
Since the filing of this opinion, counsel for respondent, within rule time, filed a petition for rehearing. It has been carefully considered. Upon suggestions contained in it, we have modified one statement and incorporated in this opinion some additional considerations to what' was originally written; but, as the changes do not affect the result, a rehearing is denied. The judgment of the district court is reversed. That court is directed to reverse its judgment and to enter a judgment of dismissal. Appellants will recover costs of both courts.