83 Vt. 66 | Vt. | 1909
This was an action brought by the plaintiff, a corporation, to recover damages for the destruction by fire of a grist-mill and outbuildings and of grain stored therein. Trial by jury was had. Yerdict and judgment were for the plaintiff. The fire in question, which occurred May 12, 1905, was alleged to have been communicated by a locomotive engine on the Connecticut & Passumpsic Rivers Railroad, which, on the date named, was operated by the defendant as lessee. The statute which governs is now P. S. 4510, which reads as follows: “A person or corporation owning or operating a railroad shall be responsible in damages for a building or other property injured by fire communicated by a locomotive engine on such road, unless due caution and diligence are used and suitable expedients employed to prevent such injury. Said person or corporation shall have an insurable interest in the property along its route, and may procure insurance thereon. ’ ’
Under the statute the burden was on the plaintiff to show by a fair balance of proof that the fire was “communicated” by one of the defendant’s engines, and if that fact was established, the plaintiff was entitled to recover unless the defendant showed affirmatively by the same measure of proof that it used “due caution and diligence” and employed “suitable expedients” to prevent the injury. Cleaveland v. Grand Trunk Ry. Co., 42 Vt. 449; Farrington v. Rutland R. Co., 72 Vt. 24, 47 Atl. 171.
The first exception presented by the bill of exceptions, as drawn, was taken to the action of the court in overruling a motion for a directed verdict made by the defendant at the close of the evidence. This motion was based on eight grounds. The fire was first seen on the roof of an old blacksmith shop owned by the plaintiff standing on the easterly side of the railroad track and, to about one-third of its extent, on the right of way of the railroad.
Under the motion for a verdict the claim, or claims, dependent upon the location of the blacksmith shop will first be considered. The third ground of the motion was as follows:
*76 “Because the plaintiff maintained the blacksmith shop partly upon the defendant’s right of way, or road bed, as a trespasser, and the fire started on the part of said shop which was upon the said right of way without right.” The fourth ground of the motion was this: “Because the plaintiff was negligent in maintaining the blacksmith shop upon the defendant’s right of way without right, in the condition in which the shop then was, and such negligence contributed to the destruction sued for. ’ ’
It appeared that the blacksmith shop stood to about one-third of its extent on the easterly side of the defendant’s right of way, and, as to the rest, on land of the plaintiff; that it had not been in use as a blacksmith shop for about fifteen years; that during that time it had not been repaired, and that it was covered with old and short shingles. From the printed case we quote as follows: “There was no evidence in the ease tending to show any contract or lease from either the Connecticut & Passumpsie Rivers Railroad Company or the defendant authorizing this building to be located where and as it was located unless the fact of its actual existence and location as herein stated is such evidence; but the evidence tended to show that it had stood upon the same location for more than thirty years.” There was no evidence that the defendant, or its lessor, ever objected to the location and maintenance of the shop. This evidence tended to show that the blacksmith shop was maintained where it was by permission, or under an implied license, and that so it was rightfully there, since the granting of such license is not ultra vires. Grand Trunk R. Co. v. Richardson, 91 U. S. 454, 23 L. Ed. 356; Kansas City, etc. v. Chamberlain, 61 Kan. 859, 60 Pac. 15; Sherman v. Maine Central, etc. R. Co., 86 Me. 422, 30 Atl. 69; Ingersoll v. Stockbridge, etc. R. Co., 8 Allen 438; Laird v. Railroad Co., 62 N. H. 254, 13 Am. St. Rep. 564; Kansas, etc. R. Co. v. Blaker, 68 Kan. 244, 64 L. R. A. 81, 1 Ann. Cas. 883, 75 Pac. 71; Osgood v. Central Vermont Ry. Co., 77 Vt. 334, 60 Atl. 137, 70 L. R. A. 930.
If, as the jury were warranted in finding, the blacksmith shop was rightfully where it was, the liability of the company was not affected by its location, since the company did not contract against liability because of it, though it might have done so. Osgood v. Central Vermont Ry. Co., 77 Vt. 334, 60 Atl. 137, 70 L. R. A. 930; Hartford Ins. Co. v. Chicago, etc. Ry. Co., 175 U.
The fourth ground of the motion for a verdict asserts the claim that the plaintiff was negligent in maintaining the blacksmith shop in the condition in which it was, and that such negligence was contributory and prevents recovery. There was evidence tending to show that fire was communicated to the shop from one of the defendant’s locomotives, and the state of the evidence was such that it was for the jury to say whether or not the defendant had sustained the burden of showing the use of due caution and diligence and the employment of suitable expedients; and under our statute the question of whether the plaintiff was guilty of contributory negligence in maintaining the shop in the condition in which it was does not arise. We do not say whether or not a property owner may be guilty of such proximate contributory negligence in respect to the very communication of the initial fire as to prevent his recovery. Very clearly he cannot recover if he can be taken to have exposed his property for the purpose of having it burned. Exposure of property for the purpose of having it burned and getting compensation for it from a railroad is something different from negligence'. It is an attempt at fraud which no court will allow to succeed.
In respect to liability for property destroyed by fire communicated by railroad engines, the bearing of negligence, both on the part of a railroad company and on the part of the owner of property adjoining its right of way, depends largely though not wholly upon statutory provisions. In some states the situation of the property owner is better and in others worse than in this state. Our statute fairly interpreted in the light of common law principles lays down a reasonable rule of liability intermediate between the extreme doctrines. A railroad company is not liable if it is not in fault. If it is in fault the right of one whose property is burned to recover does not depend upon whether in respect to guarding his property from fire he has exercised the care and prudence of a prudent man. One man rakes his meadows clean, and another, not careful in raking after, leaves wisps of hay which become dry and combustible. One keeps his roofs newly and tightly shingled, and another lets his roofs get into the condition in which the roof of this old black
The property owner is not bound to anticipate negligence on the part of a railroad company and guard against it, and he may use and exercise his property in any lawful way, taking upon himself the risk of loss without fault on the part of the railroad company. This holding does not preclude the idea that a property owner may be guilty of immediate and proximate negligence in respect to the very communication of the initial fire, and that such negligence may defeat recovery. As to that proposition our holding determines nothing. For their bearing upon the ruling here made cases are referred to, though they are not all in accord on other points. Patton v. St. Louis, etc. R. Co., 87 Mo. 117, 56 Am. Rep. 446; Salmon v. Railway Co., 38 N. J. Law 5, 20 Am. Rep. 356; Philadelphia, etc. Ry. Co. v. Hendrickson, 80 Pa. St. 182, 21 Am. Rep. 97; Kendrick v. Towle, 60 Mich. 363, 27 N. W. 567, 1 Am. St. Rep. 526; Railway Co. v. Jones, 86 Ind. 496, 44 Am. Rep. 334; Louisville, etc. R. Co. v. Marlbury Lumber Co., 125 Ala. 239, 28 So. 438, 50 L. R. A. 620; Southern Ry. Co. v. Darwin, 47 So. 317, (Ala.); Louisville, etc. R. Co. v. Beelor, 31 Ky. Law Rep. 750, 103 S. W. 300, 11 L. R. A. (N. S.) 935.
Thus far in considering the defendant’s motion for a verdict we have taken notice only of questions relating to the starting of the fire on the blacksmith shop. For the burning of that the plaintiff claims no damages and introduced no evidence tending to show that it was damaged thereby. It was conceded by the plaintiff that if it had not been burned up it would have been torn down. With regard to that the court charged: “I do not understand that the plaintiff claims damages for the loss of the blacksmith shop. The evidence would not warrant you in finding any value so far as the shop was concerned, and the court charges you not to consider that, if you arrive at the question of damages.” No exception was taken to this part of the charge and the record shows clearly enough that it was in accord with the theory upon which the case was tried.
In view of what the record shows as to the course of the trial the fifth, sixth and seventh grounds of the defendant’s motion for
After this fire was so far overcome that, as some of the evidence tended to show, it was thought to have been put out, it started up again and the wind, which had been blowing towards the east, changed its course and blew strongly towards the west carrying fire to a shed on the west side of the track, and thence to a stock house and factory of the Cushman & Rankin Company, and thence to the grist-mill and outbuildings of the plaintiff above referred to. The plaintiff’s evidence tended to show that the fire on the roof of the blacksmith shop was communicated to it from one of the defendant’s locomotives and, all questions of negligence on the part of both parties and of intervening causes being for the time left out of consideration, the entire conflagration stands as an integral effect of the cause which started the fire on the roof of the blacksmith shop. Isham v. Dow’s Estate, 70 Vt. 588, 41 Atl. 585, 45 L. R. A. 87, 67 Am. St. Rep. 691. The defendant quotes from Ryan v. New York Central R. Co., 35 N. Y. 210, 91 Am. Dec. 49, and also cites Pennsylvania R. R. v. Kerr, 62 Penn. St. 353, 1 Am. Rep. 431. These cases, however, are pretty generally discredited. See with regard to them Milwaukee, etc. Ry. Co. v. Kellogg, 94 U. S. 469, 474, 24 L. Ed. 256, and what is said of them in Isham v. Dow’s Estate, 70 Vt. 588, 41 Atl. 585, 45 L. R. A. 87, 67 Am. St. Rep. 691. As appears from the Isham ease these cases are not followed here. We do not understand, considering the argument of the defendant as a whole, that the doctrine of these cases is relied on. The defendant’s real claim in this regard, as appears from the brief in its behalf, is that there were intervening causes in view of which the fire which started the blaze on the blacksmith shop cannot be regarded as the proximate cause of the loss for which recovery is sought. The
The sudden change in the force and direction of the wind cannot be regarded as an intervening agency. On the question of whether or not one’s conduct in setting a fire is or is not negligent the condition of the grounds and premises as to dryness or wetness, the time of starting the fire whether in the evening or morning, the condition of the air whether still or windy, and, if there is a wind, the direction in which it is blowing, may sometimes be proper matters for consideration. But when negligence in setting out a fire is established, as in the discussion of this point we are to assume it to have been here, changes in the direction and force of the wind and in other conditions may carry the result of the negligence further than it would otherwise have gone, and yet liability attach for the consequent injuries although entirely unforeseen. The distinction is clearly made in Isham v. Dow’s Estate, 70 Vt. 588, 41 Atl. 585, 45 L. R. A. 87, 67 Am. St. Rep. 691, where on page 591, it is said: “On the question of what is negligence it is material to consider what a prudent man might reasonably anticipate; but when negligence is once éstablished that consideration is entirely immaterial on the question of how far that negligence imposes liability. ’ ’ Gilson v. Canal Co., 65 Vt. 213, 26 Atl. 70, 36 Am. St. Rep. 802, is to the same effect. So is Stevens v. Dudley, 56 Vt. 158. Among the cases cited in Gilson v. Canal Co., 65 Vt. 213, 26 Atl. 70, 36 Am. St. Rep. 802, is the case of Smith v. London & Southwestern Ry. Co., L. R. 6, C. P. 14. That was a case of fire communicated from a locomotive engine. The fire broke out between the rails and a hedge, from thence spread to a stubble field beyond, and from the stubble field was carried by a high wind over a road to the plaintiff’s cottage, which was burnt. The cottage was two hundred yards from the place where the fire started. Notwithstanding a concurrence of circumstances which, as the court recognized, no one could have been expected to foresee, the court held that since the fire was negligently set the railway company was liable since, after all, the injury proceeded from the original fire through the operation of natural causes. Doubtless such an extraordinary phenomenon in nature as in legal acceptation is an
The other claimed intervening cause is the conduct of the plaintiff, through its agent and representative, in respect to the fire on the blacksmith shop and its conduct with respect thereto when that fire was under control and practically subdued. The evidence tended to show that one Dunbar, was, at the time of the fire, in charge of the property of the plaintiff corporation in that vicinity; that upon the appearance of the fire on the roof of the blacksmith shop he got notice of it, and that he and others so far subdued the fire that, as he and others present supposed, it was extinguished; that thereupon he gave directions to tear down the blacksmith shop, and that he himself went about his work, in the grist-mill, and that in pursuance of his instructions two or three men commenced to tear down the shop; that two-or three pails of water were left for use in case of need, but that Mr. Dunbar left no instructions with regard to watching for fire; that after he had gone to work in the mill the wind rose rapidly and changed its direction so that it blew to the west; and that thereupon the fire on the roof started up again.
It is undoubtedly true that, when a fire has actually been started along the line of a railroad and knowledge of it has been brought home to a property owner in the vicinity, it is the duty of such property owner to exercise the care and prudence of a prudent man to protect his property from destruction, and that for any destruction of property to which his failure to exercise such duty proximately contributes he cannot recover notwithstanding a shortage of duty on the part of the railroad company. Stebbins v. Central Vermont Ry. Co., 54 Vt. 464, 41 Am. Rep. 855; Toledo, etc. Ry. Co. v. Pindar, 53 Ill. 447, 5 Am. Rep. 57;
Since there was in this case no claim to recover on account of the burning of the blacksmith shop the defendant was entitled to have a verdict directed in its favor if proximate negligence on the part of the plaintiff in respect to the fire at the blacksmith shop contributed to the further spread of the fire. But from a review of all the evidence on this point we conclude that the circumstances, which there was testimony tending to show, were such that there was room for opposing inferences upon the part of reasonable men in respect to the matter now under consideration, and that therefore the question was for the jury.
The first, second and eighth grounds of the motion for a verdict were somewhat general and need not be recited since all the questions presented by the motion and argued by the defendant or incidental to the questions argued have been considered. The motion for a directed verdict was properly overruled.
Since most of the questions raised by exceptions to the charge are closely related to those which have respect to the motion for a verdict we pass now to a consideration of the related parts of the charge so far as its soundness was challenged by available exceptions. The defendant presented twenty-three requests for instructions, and its last exception was to the failure of the court to comply with each such request in so far as it was not complied with, to the omission of the court to charge upon the subject-matter of each request in so far as there was such omission, and to the charge on the subject-matter of each request in so far as it varied from the request. This general exception reserves nothing. It did not apprise the trial court of any claimed omission or misdirection. Kiley v. Rutland R. Co., 80 Vt. 536, 68 Atl. 713; Drouin v. Wilson, 80 Vt. 335, 67 Atl. 825; Drown v. The New England Tel. & Tel. Co., 81 Vt. 371, 70 Atl. 599; Mahoney’s Admr. v. Rutland R. Co., 81 Vt. 210, 218, 69 Atl. 652; Davis’ Admrx. v. Rutland R. Co., 82 Vt. 24, 30, 71 Atl. 724. However, specific exceptions were taken to certain portions of the charge.
In charging with reference to the caution and diligence required of the defendant in running its trains the court told the jury, among other things, to take into consideration “the caution
In instructing the jury with respect to the duty of the de-. fendant the court in one part of the charge told them that if they found that one of the defendant’s locomotives communicated the fire to the blacksmith shop they were to inquire whether such locomotive was “equipped with as good mechanical devices as were in known practical use, and were efficient in preventing the escape of sparks and the setting of fires along that point on the line of defendant’s railroad.” To what was said about efficiency in preventing the escape of sparks the defendant excepted. The uncontradicted evidence in this ease tended to show that no engine has yet been built which can draw a train on an upgrade without emitting from its smoke-stack more or less cinders. The liability of sparks to escape from an engine equipped with as good spark arresting appliances as are in known practical use, when operated
Whether courts ought to take such notice in view of the progress of invention we do not say; but it is incontrovertible that the whole duty of a railroad company in respect to the kind of a spark arrester which it shall use is discharged when it uses “the best tested known appliances in practical use.” This rule is laid down in Farrington v. Rutland R. Co., 72 Vt. 24, 47 Atl. 171. The plaintiff’s counsel in defence of the use of the word “efficient” quotes a lexicographer’s definition of the synonymous and cognate word “effective” as follows: “Having the power or quality of producing effects,” and say in substance that a spark arrester not capable of producing effects could not be deemed sufficient by any court. But the trouble with the use of the word “efficient” is that, as used in the charge, it naturally has reference to the power of a device to produce the specific effect of preventing the escape of sparks. As a matter of nice verbal criticism it may be said that a thing may be effective without being effectual. But this passage in the charge standing by itself was likely to be misleading: However, the passage referred to is only a part of what the court said upon the subject-matter embraced therein. Elsewhere in the instructions the court stated to the jury the rule laid down in a New York case cited with approval in the Farrington case, and this rule contains in substance the objectionable phrase. After the reference to this New York case the court stated to the jury as authoritative the doctrine of this Court as found in the Farrington case. After-wards in its own language the court stated to the jury that if the appliances in question were as effective in preventing the escape of sparks “as any mechanical contrivance or invention in known practical use at that time they would constitute such suitable expedients as were required by the statute.” Again the court said with reference to the appliances in question that the jury were to consider the opinions of the experts and their description of the various kinds of such appliances upon the question of whether the
At the close of the charge the correct rule was brought to the attention of the jury; for counsel for defendant called attention to the rule laid down by the court that it was the duty of the defendant to use appliances “as good” as any known practical expedient in practical use and excepted to it on the ground that it didn’t limit the known expedients and practical use to such as the evidence in the case showed to exist. Counsel expressed the view that with that limitation the rule was well enough. Thereupon the court charged the jury further on that point and put upon the rule the limitation suggested.
Where there is a correct and an erroneous instruction upon the same point the charge may be such that the jury will be taken to have felt at liberty to follow either and then there is error. Such was the view taken of instructions in State v. Fitzgerald, 72 Vt. 142, 47 Atl. 403, in Bovee v. Danville, 53 Vt. 183, and in Alexander v. Blodgett, 44 Vt. 476. A like view is taken of instructions in State v. Tapack, 72 Atl. 962, a very recent New Jersey ease, in the decision of which State v. Fitzgerald, 72 Vt. 142, 47 Atl. 403, is cited.
But the doctrine of those cases does not apply here. As has been seen the court in one passage used an expression which, had that passage been all that was said upon the matter which it touched, would very naturally have misled the jury. But the other parts of the charge fully explained the objectionable passage and the sense in which the word “efficient” was used. This is not an instance of contradictory instructions, but the common one of instructions which need to be taken together and which when so taken make the correct rule clear. Patch Mfg. Co. v. Protection Lodge, 77 Vt. 294, 329, 60 Atl. 74, 107 Am. St. Rep. 765; Graves v. Waitsfield, 81 Vt. 84, 95, 69 Atl. 137.
It appeared in evidence that the plaintiff had received from various insurance companies on account of its loss by the fire in question the sum of seven thousand dollars, and the names of these several companies and the amount paid by each of them also appeared. There was no evidence tending to show that any of the policies contained a subrogation clause, nor was there evidence of any contract for the subrogation of any of the companies to the rights of the plaintiff against the defendant. It
The charge upon this point was, however, correct. That an insurance policy is a contract of indemnity, that the liability of the defendant company, if it is liable, is primary and ultimate and that of the insurance companies secondary, that the payments by the insurance companies and the acceptance of such payments by the plaintiff worked subrogation to the extent of the payments without any provision in that regard in the policies, that since our procedure is according to the course of the common law, the suit was properly brought in the name of the insured alone, that the defendant could not claim a reduction of damages on account of the payment to the plaintiff of insurance money, and that the defendant has no interest in the adjustment between the insurance companies and the plaintiff are propositions now fully established in this State. Cushman & Rankin Co. v. Boston & Maine Railroad, 82 Vt. 390, 73 Atl. 1073; Harding v. Townshend, 43 Vt. 536, 5 Am. Rep. 304.
In charging the jury upon the subject of damages the court among other things said: “Call to mind and find the fair cash value of each article of property, and of the real estate, and of all the property that was destroyed by fire.” The defendant excepted to the instruction to the jury to find the fair cash value of each article of property on the ground that so far as the articles of machinery are concerned they were a part of the mill which should^ be valued as a whole. Thereupon the court in substance instructed the jury that the mill included the machinery and explained and modified the charge as to value so that in our opinion the point made by the exception was fully met. This seems to have been the view taken by the defendant’s counsel at the time for to the charge as explained and modified no exception was taken.
The defendant argues in substance that this portion of the charge permitted the jury to find damages, at the time of the fire, in addition to the fair cash value of the property destroyed, that had no necessary reference to the delay of payment of the loss, and that though the jury may have declined to give damages on account of such delay, they may, nevertheless, have allowed damages in excess of the loss on some other ground. But we think that the jury could not well have been led astray, but that by reference to simple interest, as limiting the amount of the additional damages which they might allow, they were apprised of the nature of such additional allowance if made.
The court charged the jury as follows: “If the plaintiff has made out by a fair balance of evidence that the fire in question was communicated to the blacksmith shop of the plaintiff by
The question of negligence on the part of the plaintiff after the fire started on the blacksmith shop related solely to what the plaintiff did or omitted to do before the fire had been carried any further than the shop, and so before anything had been burned for the destruction of which the plaintiff claimed to recover; and as has been said in discussing the motion for a directed verdict the question of whether or not there was negligence on the part of the plaintiff, in respect to the fire at the blacksmith shop, was a question for the jury, and if the jury found that there was such negligence there was in this ease no question of damages for the jury.
The portion of the charge excepted to by the exception last noted made the question of the plaintiff’s negligence after the fire started on the blacksmith shop immaterial on the question of liability, and as all that was said in modification of it was said in
The remaining specific exceptions to the charge relate to the submission of certain evidence to the jury, and these exceptions can be best .considered in connection with the exceptions taken to the admission or exclusion of evidence. And these latter exceptions we now consider.
During the cross-examination of one Hanson, a witness called by the defendant, the court put a question to which the defendant excepted. The court ruled that the witness might answer and to this ruling the defendant excepted. The witness answered, and then began an explanation. The court did not permit him to make his explanation then, but told the defendant’s counsel that they might have him explain fully on redirect examination. The defendant took an exception to the action of the court in stopping the witness as it did. On redirect examination the explanation was given. It is not now claimed that the court’s question was an improper one, but it is claimed that there was error in not letting the witness make his explanation in connection with Ms answer. Since however, the defendant objected to the question of the court and had an exception to it, it was a proper course for the court to content itself with the answer and to leave the bringing out the explanation to counsel, who might be supposed to know the nature of it.
It appeared that the fire was first seen on the. blacksmith shop a little past noon of May 12, 1905, and it was agreed that trains of the defendant passed that place on the day in question as follows: — A passenger train going north, at eleven o’clock and six minutes in the forenoon, a passenger train going south, at'eleven o’clock and forty-five minutes in the forenoon, a freight train going north, at six minutes past noon, and another freight train going north, at thirty-eight minutes past noon. No fire or indications of fire were seen by any witness on or near the blacksmith shop before the train went by which passed at six minutes past noon, but no witness testified that there was no fire there before that time. The uncontradieted evidence was that the fire was burning upon the roof of the shop before the train passed that went by at thirty-eight minutes past twelve. The evidence, therefore, rather strongly pointed to the engine which drew the train going by at six minutes past twelve, which
One of the witnesses testified that he did not see the engine throwing sparks, but one of the witnesses, whose testimony obviously related to the same occasion, testified that it was throwing sparks when it passed him very shortly before it reached the blacksmith shop. Two of the witnesses testified to the effect that there was no apparent cause of the fire unless it was caused by the engine. No one testified to seeing sparks or cinders fall upon the shop upon this occasion or to seeing the engine emit sparks as it was passing the shop itself. Subject to the like objection and exception one witness testified that near the time when the property in question was burned up he saw a freight train passing this property emitting sparks, and that within fifteen or twenty minutes or half an hour after the train passed, fire, which his wife put out, was discovered within eight or ten feet of the track. The witness first placed this occurrence a week or two before the fire, but later said it was a week or ten days afterwards. Subject to the like objection and exception
The defendant urges the application of the rule that when a particular engine is shown to have caused a fire the evidence should be such only as relates to that engine. But this, rule, of the general soundness of which we say nothing, could not be applied here. It was not conceded that sparks from any engine started the fire, and the evidence as to the trains that passed shortly before the fire was as has been stated.
The question of remoteness, as dependent on the nearness in time to the injury complained of the other fires and the discharge of sparks testified to, was peculiarly for the trial court and the time fixed by the court had reference to a time within which, as the plaintiff’s evidence first introduced tended to show, the inspection of the defendant’s engines was the same as it was at the time of the fire. This fact indicated a reasonable exercise of discretion in respect to the time which the testimony of witnesses was permitted to cover. The evidence under consideration, including that which relates to times after the fire, was admissible. Smith v. Central Vermont Ry. Co., 80 Vt. 209, 67 Atl. 535; Hoskinson v. Central Vermont Ry. Co., 66 Vt. 618, 30 Atl. 24.
The witnesses who testified that on the occasion of the fire shortly before the injury in question they saw nothing which could have caused the fire unless it was caused by a locomotive; testified to such opportunities for observation as made this evidence admissible. In McGovern v. Hays, 75 Vt. 104, 53 Atl. 326, it was held proper for an engineer, who had told what he did to stop a train, to say that he did not know of anything more that he could have done to stop the train. This holding is much in point here.
The defendant excepted to the submission to the jury of the evidence with regard to the cinders and sparks emitted by engines within six months of the date of the fire or at any time before or after that date, and to the submission to the jury of the evidence of the fire that caught on the blacksmith shop a week or two before the destruction of the plaintiff’s property, and also to the submission to the jury of the evidence of the fire that caught near the track as hereinbefore referred to. But since the evidence was properly in the case it was proper to submit it to the jury along with the other evidence. If these exceptions raise the question of whether the evidence was properly submitted, then we hold that it was, for it appears that it was submitted as circumstantial evidence bearing upon the question of whether or not the fire in question was communicated by an engine. The defendant also excepted to the way in which the matter of the two other fires was submitted to the jury claiming, in one exception, that the evidence of those fires was submitted as indicating negligence on the part of the defendant, and in another exception, that the charge with reference thereto was faulty “because there was no suggestion that the mere fact that fire was communicated was not necessarily evidence of want of repair.” But an examination of the charge to the jury does not sustain either of these claims. The court took up first the question of whether the fire was communicated by a locomotive engine operated by the defendant, and it was in the submission of that question, and of no other, that are found the passages of the charge to which these last exceptions relate. In the course of the discussion of this point the court several times called the attention of the jury to the precise nature of the question then under consideration and the court made clear the line of demarcation between that question and the one which it next took up.
The plaintiff called as a witness Charles Ayer, foreman boiler-maker in the employ of the defendant. He testified without objection that he had to do with the repairing of smoke boxes and cinder sieves when the defendant’s engines were washed out and overhauled, and as to the frequency with which spark arresters were looked over, down to May 12, 1905, the date
Charles Chapman, a foreman of the defendant at its round house in Lyndonville, was called as a witness by the plaintiff in its opening case. ITim the defendant examined as to his duties in regard to inspecting engines and the appliances for preventing the escape of sparks and the frequency with which he made and was required to make inspection, and as to the character of the inspection that he made. By him the defendant in cross-examination showed that there was a rule of the company in force as to the inspection of the appliances for arresting sparks, and, having produced the rule and identified it by the witness, the defendant’s counsel offered it in evidence as showing one element of the care and diligence required of the defendant. The plaintiff’s counsel objected, though not because the offer was out of time, and the rule was excluded. It appears, however, that later when the defendant was putting in its case this rule was offered and received without objection, and so no question as to it is fairly in the ease. The question has, indeed, been raised whether the transcript is so referred to in the bill of exceptions as to permit notice to be taken of the final introduction of the rule. The main bill of exceptions refers to the transcript upon the motion for a verdict, and upon the questions raised by exceptions to the charge, and does not distinctly refer to it upon other questions. But there is an amendment to the bill that may fairly enough be considered as making a general reference to the transcript.
The witness, Charles Chapman, subject to objection and exception on the part of the defendant, was allowed to testify as to the number of men employed by the defendant at Lyndonville. He said that there were one hundred and fifty in all departments there. This evidence was received upon the question of whether the defendant after being charged with notice of the fire, used due diligence to prevent it from spreading, a question put in issue by the pleadings. The defendant’s evidence tended to
The plaintiff’s evidence tended to show that Mr. Cushman’s first notice, which was by telephone, was that the blacksmith shop was on fire, and that he asked for all the men that could be sent; that from three to five minutes later he telephoned: ‘ ‘ The wind is still holding south blowing the fire away from the mill; perhaps a few men would be sufficient. ’ ’ That in less than three to five minutes from that time he telephoned that the wind had changed and asked for all the men that could be sent, and that it was then fifteen or twenty minutes before the mill caught fire. Jt appeared from the defendant’s evidence that a train could be run from Lyndonville to the place of the fire in about four minutes; that with the exception of the section men who went on the hand car no men were sent from the shops until the regular afternoon express which left Lyndonville at twelve minutes past two, it being held for the men from the shops to get aboard. It will be seen from this reference to the testimony
D. A: Smith, the master mechanic of one division of the defendant railroad, was a witness in behalf of the defendant and testified as to the construction of its engines and as to its use, as a spark arrester,' of a perforated steel plate. On cross-examination the plaintiff’s counsel showed him some objects, and under objection and exception the plaintiff was permitted to inquire if they were cinders coming from a locomotive. He testified that they were cinders but that they did not resemble cinders
In the cross-examination of the master mechanic with regard to the cinders no inadmissible testimony was elicited.
The plaintiff in its rebuttal called as a witness one Hoyt who produced a box of what he denominated cinders. As to them his evidence was that he found some of them “over in the cellar of this old blacksmith shop and some in the road towards the mill around the scales there and up towards the Cushman & Rankin Mill there.” These cinders called exhibit “0” were offered in evidence by the plaintiff and were objected to by the defendant on the ground that there was no testimony that they
But it appears from the transcript that after the cinders “B” had been used in the experiments and admitted in connection with their experimental use only, a witness for the defendant had brought into court cinders picked up by him during the trial
Under these circumstances we think that the cinders collected by the witness, Hoyt, were properly received in rebuttal, and were properly submitted to the jury on the second ground of their submission as well as on the first. Perry v. Vermont Machine Co., 70 Vt. 276, 40 Atl. 731; Perry v. Moore, 66 Vt. 519, 29 Atl. 806; Stevenson v. Gunning’s Estate, 64 Vt. 601, 25 Atl. 697; Hogan v. Northfield, 56 Vt. 721; Lytle v. Bond’s Estate, 40 Vt. 618.
E. T. Ide, plaintiff’s president and general manager, testified that at Lyndon, where the mill that was burned was situated, the railroad facilities and the water power combined to make the location very nearly ideal, and that so the mill was rendered of great value. On the cross-examination of the witness it appeared that the plaintiff had rebuilt, not at Lyndon, but at St. Johnsbury, where there was no water power, and that the mill was run by electric power. The reason given for the change was that the new location was more convenient to the plaintiff’s main business and had superior railroad facilities. ■ On re-direct examination the witness was allowed, subject to objection and exception by the defendant, to give an additional reason for the change in location, and said: “I did not think it could be rebuilt at the present time, or at that time, for a cash value that I could obtain for it if I wanted to sell it.” The defendant having on cross-examination inquired about the reasons for not rebuilding at Lyndon, it was proper on re-direct examination to bring out this additional reason. In receiving the testimony as to this additional reason the court held, and told the jury to bear in mind, that this testimony had nothing to do with the cash value of the mill destroyed, but only with the reasons why the mill was not rebuilt at Lyndon. No exception was taken to this holding and instruction. The indirect bearing of the evidence was to sustain, so far as it might, the testimony as to value given by the witness, in the respect in which cross-examination had weakened it. Its effect in that direction could not have been great, for, if a mill built at Lyndon wouldn’t be worth what it would cost to build it, it would seem that the ideal character of the location could not greatly have enhanced
Some of the testimony of the witnesses as to the availability of water power, as affecting the value of the mill, was taken subject to objection and exception; but the evidence upon that point was obviously admissible.
It having appeared that shortly before the fire extensive repairs had been made on the mill, Mr. Ide was allowed, subject to objection and exception, to testify to the occasion for making the repairs. He said they were made to transform the mill from a custom mill and a flour mill into a corn grinding mill for merchant work and car load business, but that they did some custom work. In this there was no error. He further testified as to the value of the remodeled mill, in view of its capacity for doing custom business, and in view of the local trade and the neighborhood contributory to that mill. This testimony was received under objection and exception on the ground that the witness had testified that the mill had been transformed from a custom mill into a merchant mill, and that so the local patronage of a custom mill could have no effect upon this mill as made over. But the witness had already testified that the mill when made over did some custom work, and in giving his testimony on this last point Mr. Ide testified that the mill as remodeled was capable of doing a very large custom business and that it was arranged for such business in connection with the other business for which it was adapted. In view of this testimony, the only objection made was without force, and in overruling it there was no error.
The testimony as to the value of the mill destroyed went on at great length, and considerable of it was very close to the border line of relevancy. George P. Ide, former owner of the mill, who had been familiar with it for more than thirty years, after having testified fully in regard to the construction and condition of the mill at the time he sold it to the plaintiff corporation, which was very shortly before the fire, referred to huskwork, of which he gave an explanation of some length, and which from his explanation appeared to be a part of the mill itself. He was asked for the fair cash value of that in the spring of the fire; and the defendant objected on the ground that this huskwork was a part of the structure of the mill which
Mr. Dunbar, a witness before referred to, was the miller ■of the plaintiff. He testified fully to the condition that the mill property was in and the nature and extent of the repairs that had been made thereon and that he had been a miller a great many years and had helped set up machinery and had known something of the sales of different mills, what they had been sold for, as the parties purchasing had told him. Thereupon he was allowed, subject to objection and exception, to testify as to the fair cash value of the buildings and machinery at the time of the fire. The objection made was that no foundation had been laid by way of qualification. But we think that the court was amply warranted in ruling, as it tacitly did, that the witness was qualified to testify on the subject of value. His estimate of value was by way of a lump sum and in that respect was unobjectionable.
The plaintiff called as a witness Alfred L. Bragg, a contractor and builder of thirty-eight years’ experience residing in St. Johnsbury, and showed that he had worked at his business in Caledonia County and knew something of the value of real estate and of buildings there and that he had seen the mill and store house that were burned and that he had been in the lower part of the mill, but that he knew nothing of the value of grist
In an amendment to.the bill of exceptions the presiding judge made an order that the copy of the reporter’s transcript of the case, which the bill directed the defendant to furnish the court, should be filed by the defendant with the clerk of Caledonia County on or before April 24, 1909, to be kept by him for the benefit of both parties until May 1, 1909, and then to be forwarded to Montpelier to the clerk of the Supreme Court. To the making of this order the defendant excepted. But exceptions lie only to rulings upon questions of law arising upon the trial of a cause, and the question of the power of the presiding judge to make the order complained of is not before us.
Judgment reversed and, cause remanded.