Duer v. S. E. Allen & Son

Oct 18, 1895
Reporters:
,
Before:
Granger
Granger, J.

I. It is first urged thatthe verdict is not supported by the evidence. It is not questioned *37but that, there is a conflict, but its. weight as to facts and1 probabilities is argued. The theory of the plaintiff is that the fire originated in the boiler room of the building by the escape of fire from the furnace on to some boards lying on the ground in front of the furnace. Borne ‍​​‌‌‌​​‌‌​​​‌‌‌​‌‌‌‌‌​​​‌‌‌‌​​‌‌​​​‌​‌​​​​‌​‌​‌‌‌‌‌​‌​‌​​‌‌​‌​‌‌​​‌‌​‌​​‌​‌​​​​​​‌​​‌‌​​‌​‌‌‌‌​‌‍five or six witnesses, testify to being at the building, soon after the fire started, and to seeing the boards in front of the furnace on fire, and the partitions on Are, before there was fire in other parts of the building. It is. true there is evidence in conflict with this, but nothing to’ show it absolutely incredible. It is a plain, case of conflict, so1 as to. make the finding of the jury conclusive upon us. The ruling in this respect is too well settled to require a citation of authorities.

1 II. One Beily was a witness, for plaintiff, and testified to, having seen a door in front of the furnace some two. months, before the fire. Two or three questions were asked, all directed to the same point, and answered. After each answer the objection was made and a ruling ‍​​‌‌‌​​‌‌​​​‌‌‌​‌‌‌‌‌​​​‌‌‌‌​​‌‌​​​‌​‌​​​​‌​‌​‌‌‌‌‌​‌​‌​​‌‌​‌​‌‌​​‌‌​‌​​‌​‌​​​​​​‌​​‌‌​​‌​‌‌‌‌​‌‍thereon had. The rulings are complained of, but we cannot consider them, for the reason that the objections followed the‘testimony or answer, and not the question. When testimony is in, the way to’ exclude it is by motion to strike it out, and not by objection. See Blackmore v. Fairbanks, 79 Iowa, 282 (44 N. W. Rep. 548); State v. Day, 60 Iowa, 100 (14 N. W. Rep. 132). It may also be said that the record, in view of both abstracts, does not show an exception to, the rulings.

*382 *37III. A witness was permitted to testify that no barrels or tanks of water were kept in the building as a protection against Are. It is thought to’ be error,, for the reason that it does not appear that it was negli*38gemce not to have them there or not to take such precautions. The jurors were the judges of what ‍​​‌‌‌​​‌‌​​​‌‌‌​‌‌‌‌‌​​​‌‌‌‌​​‌‌​​​‌​‌​​​​‌​‌​‌‌‌‌‌​‌​‌​​‌‌​‌​‌‌​​‌‌​‌​​‌​‌​​​​​​‌​​‌‌​​‌​‌‌‌‌​‌‍was and what was not negligence. It was proper to put before the jury the exact situation,, and let them judge of what was and what was not negligence, in the light of all the facts. The same considerations control the admission of evidence as. to keeping a watchman about the building. Whether necessary or not is a question of fact, and not of law.

3 IV. Defendants called as a witness one who. was a “practical creamery man,” and offered to- prove by him that the creamery in question “was conducted in the same manner that an ordinarily prudent man in that business would conduct a creamery.” The evidence was excluded, and properly so-. The question of negligence- or diligence in the matter- of care or precautions against fire from a furnace, because of boards or other combustibles being near it, is not ‍​​‌‌‌​​‌‌​​​‌‌‌​‌‌‌‌‌​​​‌‌‌‌​​‌‌​​​‌​‌​​​​‌​‌​‌‌‌‌‌​‌​‌​​‌‌​‌​‌‌​​‌‌​‌​​‌​‌​​​​​​‌​​‌‌​​‌​‌‌‌‌​‌‍a question for expert evidence, but one for the jury, upon- the particular facts ‘-of each case-. The evidence, if admitted, would have permitted the witness to find the conclusion for the finding of which the jury was impaneled.

4 V. Some catalogues containing prices: and cuts of creamery supplies were in court, and identified. Appellants.7 abstracts show that -both the cuts and-price lists: were put in -evidence,- the latter against objection. Of the cuts no- complaint is made. Appellee’s abstract denies that the price lists ■were put in evidence, and this- abstract is. not denied in this particular, and its statements: must be taken as true. Knight v. Railway Co., 81 Iowa, 310 (46 N. W. Rep. 1112), and cases cited. The question cannot be considered with such a state of the record, but we may add that, with the proof adduced that *39they were standard prices, ‍​​‌‌‌​​‌‌​​​‌‌‌​‌‌‌‌‌​​​‌‌‌‌​​‌‌​​​‌​‌​​​​‌​‌​‌‌‌‌‌​‌​‌​​‌‌​‌​‌‌​​‌‌​‌​​‌​‌​​​​​​‌​​‌‌​​‌​‌‌‌‌​‌‍the lists were properly in evidence.

5 VI. One of the defendants was a witness, and offered to testify “that all care of the building was taken that could be with reference to its taking fire.” The offer was rightly excluded. He

should have stated what care was taken, and left it to the1 jury to say whether or not, it was due care.

The record is without error to’ reverse -the judgment, ’and it is affirmed.