Hammond v. New York, New Haven, & Hartford Railroad

211 Mass. 549 | Mass. | 1912

DeCourcy, J.

This is an action under St. 1906, c. 463, Part II, § 247, to recover damages for the destruction of a building and shade trees by fire alleged to have been communicated by a locomotive engine of the defendant. The trial judge found for the plaintiff and exception was taken to the refusal to rule that on all the evidence the plaintiff could not recover, and also to the admission of certain evidence.

1. From the testimony the judge could properly find that soon after midnight the fire was discovered on the roof of the plaintiff’s building, on the side toward the railroad track, and over an unoccupied apartment. After half past ten that night, for about twenty minutes, an engine had been shifting a freight train on the track which was fifty or sixty paces from the house, and the wind was blowing from the direction of the train. On other nights sparks in large quantities were frequently seen coming from the engine on this train, and another fire had occurred in the vicinity on the night before. Nothing in the evidence suggests that the fire in question might have originated in any other way than from the locomotive. In view of these circumstances and of the other evidence in the case, it cannot be said as matter of law that the judge was not warranted in concluding that the fire was communicated by a spark from the defendant’s engine. Highland Foundry Co. v. New York, New Haven, & Hartford Railroad, 199 Mass. 403.

2. The exceptions relating to evidence may be disposed of briefly. The judge rightly allowed witnesses to testify as to the fair value of the building. Under this statute the defendant is in effect an insurer, and the measure of damages is the fair or real value of the building at the time of the fire, whenever the market value would not indemnify the plaintiff for the loss which he has sustained. Wall v. Platt, 169 Mass. 398.

The record discloses no error with reference to the evidence bearing on the value of the trees. The answer of the plaintiff, that the trees were worth $200 each to the place, was responsive to a question that was asked without objection, and the judge properly refused to have the answer stricken out. The questions to the witness Clark as to the value before and after the fire of limited portions of the plaintiff’s land were rightly excluded in the discretion of the judge. None of the other exceptions relating to evidence was argued and we treat them as waived.

Exceptions overruled.