44 N.Y. 367 | NY | 1871
Lead Opinion
The only grounds upon which we are asked to reverse the judgment below are, that there was no proof of *369 negligence, and hence that the plaintiff should have been nonsuited; and that improper evidence was received by the judge at the trial, as to the value of the dwelling-house.
1. The mere fact that large sparks were emitted from the engine in such profusion, and were carried to such a distance, as to set fire to adjoining fences and buildings, is sufficient to show that there was some carelessness, as common observation and experience teach that engines can be and are run through the country without such dangerous consequences. There was, however, evidence that a spark arrester had been used upon the smoke pipe of this engine before and after the accident, and that while thus used there was no damage from the sparks. The spark arrester had been left off for some weeks before the accident, and this furnished some evidence of negligence. It matters not that it was not common to use the spark arrester upon dummy engines. It is enough that the evidence tended to show that this engine could not with safety be run near dwellings without this appendage, and that it could be with it, and hence ordinary prudence required its use. It is sufficient upon this branch of the case, that there was some evidence from which the jury could properly infer negligence in the care, management or construction of the engine. (52 Penn., 379, Albany Law Journal, 3 vol., 155.)
2. To the witness Clomes, who was a carpenter, and knew plaintiff's house, had been in the kitchen of it, and knew its dimensions, location and general appearance, the following question was put by plaintiff's counsel: "Assuming the house to have been very plainly finished in the inside, and to have been partly built in 1814, and an addition made to it in 1836, and taking what you know of the condition of the house, in your opinion, what was the value of the house?"
To the witness Wells, who was a carpenter, assisted plaintiff in building an addition to his house in 1836, and was then all through the house; saw the house outside daily after that and knew its condition outside but not inside, at the time of the fire, the following question was put by the *370 plaintiff's counsel: "What in your opinion was the fair value of the house just prior to the fire?"
To the witness Brown, a carpenter, who testified that he knew the house, had seen it but little, and that the house was in good condition at the time of the fire, the following question was put: "Supposing the old part to be of oak and the new of pine, lathed and plastered, finished in a plain and substantial manner, and the timber of an ordinary size and amount, what was the fair value of the building on the day of the fire?"
To each of these questions there was a mere general objection, without specifying any grounds, by defendant's counsel, and the court overruled the objection and permitted the witnesses to answer.
I do not think these objections furnish any grounds of error.
While the acquaintance of the witnesses with the house was not very minute and exact, yet they had a general acquaintance with the house, and could form some estimate and give some opinion as to its value. There is no rule of law, and there can be none, defining how much a witness shall know of property before he can be permitted to give an opinion of its value. He must have some acquaintance with it, sufficient to enable him to form some estimate of its value, and then it is for the jury to determine how much weight to attach to such estimate. Here the witnesses were carpenters and had a general acquaintance with the house; they knew its shape, location, external appearance, and to some extent, its internal condition; and the court did not err in allowing their opinions of its value to go the jury for what they were worth. (Clark v. Baird,
If it was claimed, as to either of the questions, that it was incompetent for assuming facts not true or not proven, such ground of objection should have been specified, that the requisite proof might be given or the questions modified.
The judgment should, therefore, be affirmed with costs. *371
Concurrence Opinion
The defendant's counsel insists that there was no evidence of negligence.
The locomotive was run without a screen over the smoke-stack, and the fuel used was pine and oak wood. Large burning cinders were seen to pass from the smoke-pipe or stack. A screen would have prevented the escape of such cinders. This evidence was quite sufficient to require the questions of firing and of negligence, whereby the plaintiff's house was destroyed, to be given to the jury.
As to the question of damages: Three witnesses testified to the value of the house. They were all carpenters and had often seen it. Some of them had not been in it, and the style of finish was not proven. These men were competent to give a general opinion. One who had not been into it was asked for his opinion based upon a plain finish. It was proven to have been a dwelling-house, and had been occupied as such for many years. I think there was no impropriety in assuming that it had a plain finish. No other point was made at the argument here.
The judgment should be affirmed, with costs.
All for affirmance except LOTT, Ch. C., not sitting.
Judgment affirmed, with costs.
