Thе United States brought an action alleging that the defendant carelessly and negligently set and caused to be set a certain fire, which fire it
The defendant assigns as error the denial of its motion for dismissal and non-suit at the close of the government’s case, made on the ground that the evidence adduced was insufficient to sustain a finding in favor of the plaintiff. The denial of thаt motion cannot avail the defendant as ground for reversing the judgment. After it was denied the defendant proceeded to introduce its testimony, and at the close of the trial it made no motion fоr judgment on the ground of the insufficiency of the- evidence to sustain the complaint. The rule that under the circumstances here presented the evidence cannot be reviewed by an appellate court has been so frequently applied by this and other courts as to render unnecessary a review of the ,authorities. Deupree v. United Stales (C. C. A.)
Error is assigned to the admission in evidence of two maps made by the witness Evans and referred to in bis testimony concerning his examination of the land covered by the fire, to determine the extent of the damage caused thereby. The objection was that the maps were incompetent. One of them covered the particular premises on which the fire originated. The othеr, a larger map, covered the whole area of the timber destroyed or injured by the fire. We think that the objection was properly overruled. Evans was in charge of timber surveys and had been in thе Forestry Service for some 15 years. He described in detail tho method by which he investigated the damage to the land included in the larger map. He stated that he started from an ascertained quаrter section corner, and theneo ran lines due north and south; the lines being 2% chains apart. Tho defendant urges that the maps were useless for the purpose of proving damages, and direсts attention to the fact that, according to the testimony of Evans, four strips were run across each 40-acro tract, and on each tract a plat containing one-tenth of an acre was selected on which to count the trees that had been growing thereon, and that tho maps do not show the location of those plats, or wheiher the one-tenth acre reprеsented a fair average of the timber on the 40 acres. It was obviously impracticable for the government to count every tree that had been destroyed on 4,000 acres of land. The methоd followed was similar to that by which timber is ordinarily cruised, and there was no attempt to show that as a matter of fact Evans’ testimony as to the extent of the damages was unfair or was unsupported by thо facts. Tho maps which he made were in the nature of memoranda from which he testified, and they were undoubtedly competent for that purpose.
The argument on the assignment of error goеs farther than the objection to the maps as incompetent, and attacks the testimony which Evans gave in connection therewith as so “conjectural, remote, and uncertain” that it should have been excluded. That, we think, is not sustainable. Under the circumstances, Evans’ method seems to have been scientific and reasonable. He took four sample plots in each 40-acre subdivision, and estimated the destroyed merchantable timber and the growing timber not damaged or killed and the cost of replanting the area where young growth was killed and where there were less than thrеe living seed trees per acre, applying the average cost of planting over a period of years in the forests of that region. We are not convinced that any impropеr elements ontoi’ed into the estimates of tho witness, or that they should have been excluded as “conjectural, remote^ or uneer
Nor do we think that Evans’ report should have been excluded. The report was a detail of the measurements of the damaged timber and a calculation of the extent of the damage, and it was presented for the purpose of showing those details in connection with the testimony of the witness. In McCaskill Co. v. United States,
Exception on the ground that they did not represent present conditions was taken to the admission of two photographs of the burnt premises and one moving picture thereof, taken, more than three years after the fire. Witnesses familiar with the premises befoi'e and after the fire tеstified that the views so taken represented the scene practically the same as at the time of the fire, with the exception that the ground had been burned over and the timber had been destroyed. Such being the case, weB cannot see that it was error to admit the photographs, nor in any view of the question of their admissibility does it seem to us that they could have been prejudicial to the defendant.
It is contended that it was error to permit the witness Morehead to answer the question: “With what degree of accuracy are you able to determine the location of a fire from Mt. Elwell, a distance of approximately 15 miles, and how accurately will you be able to tell the location of the fire in feet?” The objection was that the evidence was inсompetent. ' Por three years Morehead had been a Porest Service Lookout, engaged in spotting and locating fires in the national forests, and he was familiar with the topography of that portion of the country. He had described his method of locating fires by the use of his instruments and observations at his lookout point. He testified that he could- tell its location within 50 or 100 feet. There was no evidence that he was not capable of doing this with accuracy, or that his instruments were untrustworthy. We find no merit in the assignment.
The judgment is affirmed.