27 Fla. 1 | Fla. | 1891
This is an appeal from a judgment recovered against appellant by the appellees in April, 1890, for the sum of 852,909.03, and costs, in an action of trespass.
The amended declaration states : That the defendant, who is a corporation under the laws of Florida, on April 9th, 1888, owned, controlled, managed and operated a railroad from the town of Sanford, in Orange county, to Tavares, in Lake county, in this State, known as the Sanford & Lake Eustis Division of the Jacksonville, Tampa & Key West Railway Company, and that at the same time, and at the time of the construction of the said Sanford & Lake Eustis road, the plaintiff, a body corporate under the laws of this State, was the owner of certain buildings in Tavares, to-
The demurrer having been overruled, the defendant filed five pleas :
1st. Not guilty.
2d. That it did not own, manage, control or operate a certain railroad, or any railroad, running from the said town óf Sanford, to that of Tavares, and known as the Sanford & Lake Eustis Division of the Jacksonville, Tampa & Key West Railway, and was not the owner, manager, controller, or operator of any such railroad on the 9th day of April, 1888, or at any time prior or subsequent to this date.
3d. The plaintiff is not a corporation as alleged.
4th. That the plaintiff by its own acts so contributed to its own loss- and injury that it has no right of action.
5th. That whatever loss or damage the plaintiff may have sustained, as set forth in the declaration, was by its own fault and negligence.
Issue was joined on these pleas, but the third plea has been abandoned in this court.
The questions to be considered next arise under the issue made by the second plea.
The plaintiff delivered to the defendant’s attorney on July 30th, 1889, interrogatories for discovery, ad
Upon the answers, with the interrogatories, being
The interrogatories were filed under certain provisions of “an act to amend the pleadings and practice of the courts of this state,” approved February 8th, 1861, secs. 18, 19, 20, 21, McClellan’s Digest, pp. 516, 517. The 18th and 19th of these sections are as follows:
“18. I-n all causes in any of the courts of the state the plaintiff may, with the declaration, and the defendant'may, with the plea-, or either of them may, at any other time, deliver to the opposite party or his attorney interrogatories in writing upon any matter as to which discovery may be sought, and require such party, or in case of a body corporate any of the officers of such body corporate, within ten days to answer the questions in waiting by affidavit, to be sworn and filed in the,ordinary way; and any party or officer omitting, without just cause, sufficiently to answer all questions as to which a discovery may be sought within the above time, or such extended time as the court or a judge may allow, shall be deemed to have committed a contempt of court, and shall be liable to be proceeded against accordingly.”
“19. In case of omission, without just cause, to answer sufficiently such written interrogatories, it shall be lawful for the court or judge, at their or his discretion, to direct an oral examination of the interrogated
The 20th section is as to the return of depositions taken under the preceding section, and authorizes office copies to be given to the opposite party. The other section is as to reports by the examiner and costs.
It is contended that these sections have been repealed by the act of February 4th, 1874, entitled “an act in relation to’testimony in civil actions,” Chapter 1983 of the statutes, sec. 24, p. 518, McClellan’s Digest, which statute enacts that no person offered as a witness in any court, or before any officer acting judicially, shall be excluded by reason of his interest in the event of the action or proceeding, or because he .is-a party thereto; providing, however, the parties to, and those interesting in the event of an action, their assignees and those under whom such parties, or interested persons claim, shall not testify as to any transaction or communication between such a witness and
The purpose of the act of 1861 was to enable parties to actions at law to obtain “discovery” without having to resort to the expensive and tardy procedure by bill in equity for srich purpose. In Wilson vs. Webber, 2 Gray, 560, it is said of a substantially similar statute : The main purpose of these provisions was to substitute in place of the tedious, expensive and complex process of a bill of discovery on the equity side of the court, an easy, cheap and simple ¡node of interrogating an adverse party, as incident to and part of the proceedings in the cause in which the discovery was sought. It was not intended to make the parties to a cause witnesses, who might at the pleasure of the party interrogating, be made to testify respecting the whole case, but only to give a limited right to obtain evidence from an adverse party in analogy to the well settled rules regulating bills of discovery in the court of chancery in England. See also Bayley vs. Griffiths, 1 H. & Co., 429. In Williams vs. Cheney, 3 Gray, 215, 217, 220, where the defendants proposed to read in evidence the answers of the plaintiff to interrogatories filed by the defendants to another suit pending
Whether or not this act does away with the equity jurisdiction or practice for obtaining discovery in aid of actions at law, we need not decide, as no such proceeding in equity is before us. The authorities cited in the books against the idea of an abrogation of the equitable jurisdiction or practice are: Cannon vs. McNab, 48 Ala., 99; Continental Life Ins. Co. vs. Webb, 54 Ala., 688; Buckner vs. Ferguson, 44 Miss., 677; Millsaps vs. Pfeiffer, Ibid, 805; Kearney vs. Jeffries, 48 Ibid, 343; Shotwell vs. Smith, 20 N. J., (Eq.) 79; Hoppock vs. United New Jersey R. R., &c., Co., 27 Ibid, 286, and French vs. First National Bank, 7 Benedict, (U. S. Dist. Ct.) 488; while those relied on as against it are, Rindskoph vs. Platto, 29 Fed. Rep., 130; Riopelle vs. Doellner, 26 Mich., 102; Heath vs.
Though the general rule in equity is that a person who has no interest in the subject-matter of the suit, or is merely a witness, cannot be made a party defendant to a bill either for relief or for purposes of discovery, there is an exception to this rule in the case of a proceeding against a corporation, for the reason that a corporation answers under its seal, and not under oath; and a full knowledge of facts might not be obtained from it. 2 Story Eq. Jur., sec. 150, and notes; Garr vs. Bright, 1 Barb., (Ch.) 157; Fenton vs. Hughes, 7 Vesey, Jr., 287; Lindsley vs. James, 3 Cold., 477; Smith vs. St. Louis Mutual Life Ins. Co. 2 Tenn., Ch., 599; Fulton Bank vs. New York & Sharon Canal Co.,
The reason given for this inadmissibility of the answer of the officer as evidence against the corporation is the rule that the answer of one defendant in chancery cannot be used, or is not evidence against his co-defendant, the admissions of the one do not bind the other.
Though we think the purpose of this statute was not to authorize either party to examine the opposite party or officer of the opposing corporation as to the whole case, or as to such opponent’s case, but simply in support of the case or defence of the party propounding the interrogatories upon the principles governing and limiting bills of discovery in chancery. Zeigler vs. Scott, 16 Ga., 389; Thornton vs. Atkins, 19 Ga., 464; Godwin vs. Wood, 5 Ala., 120; Pritchett vs. Munroe, 22 Ala., 501. We do not think the same rule obtains
The introduction of the answers of the officers named above were objected to' on four grounds : 1st, it was not the proper way of bringing into court the testimony of an absent witness ; 2d, the defendant had no authority of cross-examination ; 3d, that Parker is not shown
The first and second of these objections are fully answered by what has been said above. A corporation has no more right to urge the second objection than any other defendant; it acts through its officers, and not otherwise. As to the third and fourth objections it is only necessary to say that it- must be presumed, in the absence of any showing to the contrary by the company, that Parker answered by and with its consent and as its officer. There is no pretense that the interrogatories were not duly served, or that any unfair advantage or irregularity or practice was attempted against the defendant. It is true the interrogatories were not addressed to him; still the only justifiable assumption is that he was put forward by the company to answer those addressed to another, and absent officer in -whose place he was acting. If he or any of these officers were of such a grade or character that they should not have answered, tlie objection should have been supported by some affirmative showing to that effect. Without saying more, an objection that any officer is not such one as should have answered, comes very inopportunely when the case is on trial. It is reasonable to require that it should be made before answering, and fair practice demands that the party propounding the interrogatories should not be liable to be ensnared by an answer filed as a compliance with the statute and an exception of this kind
Regarding the answers as evidence, and considering them in connection with other testimony bearing upon the same point, it is clear that the defendant company controlled, managed and operated the Sanford and Lake Eustis road at the time of the fire in question. It is not necessary to set forth all the testimony on this point. To do so in this, or in several other questions of fact, would swell the opinion, -which necessarily will be very long, beyond a tolerable measure.
It is asserted by appellant’s counsel, however, that barring the answers to the interrogatories for discovery propounded by plaintiff to Earned, Leming and Parker, there is no testimony to sustain the allegations of the declaration, upon which the plea takes issue. A concise statement of the other evidence bearing on the point will show this contention to be untenable, M. R. Moran, who was the general superintendent of the defendant company from the year 1887 to. March 80th, 1889, says that the Sanford & Lake Eustis Railroad, from Tavares to Sanford, was operated and controlled by the defendant during those years, and on April 9th, 1888, the day of the fire, to the best of his knowledge and belief; that the defendant company was not the owner of the road, and that the receipts were taken by the Sanford & Lake Eustis Company, and the expenses of the operation of the road were paid out of the moneys received from it so far as they went; that the engines, cars and rolling stock run upon the road
W. B. Tucker, who was agent of the defendant company at Tavares in 1888, says that the line of the road ran from Tavares to Jacksonville; that the portion of the line of which he was agent at Tavares was designated or set down on the cards as the Sanford & Lake Eustis Division of the Jacksonville, Tampa & Key West Railway; that the forms, in so far as the business of his office was conducted, were all headed Jacksonville, Tampa & Key West Railway Company, and he issued freight receipts and bills in the same name; that the printed through passenger tickets were headed “Jacksonville, Tampa and Key West Railway,” and there was a coupon good from Tavares to Sanford printed: “S. & L. E. Division;” that Jacksonville, Tampa and Key West trains were run on the division, that is, their engines were so labelled, and that an engine marked “J. T. & K. W.” carried the train out on the morning of the fire; that he rendered his accounts to the auditor of the Jacksonville, Tampa and Key West Railway, and looked to that company for compensation for his services, and received compensation from the paymaster or cashier of that railway, and in receiving freights from other roads connecting with the line at Tavares, he receipted for them in the
The testimony set out above shows that the defendant company was actually operating and controll
If we look beyond the testimony set out above .to that contained in the answers to interrogataries, we And the secretary of the defendant company testifying that it was operating the road “under and in accordance with a memorandum of agreement between the two companies,” providing' that the defendant company would operate the road until May 1st, 1888, and pay the difference, if any, between the expenses and receipts of the Sanford and Lake Eustis Company, and “supply for the use of the second party,” Sanford
The agreement Avas made in 1887. The effect of its terms is that the defendant company should in its own right operate the road, furnishing rolling stock and charging for the use of the same, and the two and a half per cent, of its OAvn expenses as operating expenses. There is certainly nothing in its terms or effect that Avould relieve the defendant from liability as the actual operator of the road, and the fact that the memorandum agreement may not have been formally executed by the defendant or any of its officers, does not do aAvay Avith the potential fact that the defendant was in possession of the road and actually operating it, as Avas understood by its officers, on those terms. If not on those terms, on Avhat terms, beneficial to the defendant, or relieAdng him from responsibility, can it be said the road Avas operated ?
That a party in possession of and operating a railroad, whether a lessee or otherwise, is xjrimarily liable for all injuries and default; and that even if the train or engine inflicted the injury is hired to another company, if the company owning the train employs the engineer, and said train is under the control of the engineers and officers of the company hiring it, said company is liable in damages for any injury inflicted; and that the owner of the engine inflicting the injury is liable to the person injured, if said engine is operated by an engineer in the employ and under the control of said owner.
That a company controlling and operating a railroad and employing all the agents, servants, engineers, conductors, and other employees, and having complete control over them, and doing business in its own name, whether said company operates and controls as lessee or otherwise, such company may be regarded as the owner pro licic vice of the road it controls and operates.
Each of these charges -were excepted to by the defendant, who requested the following charge: If the jury believe from the evidence that the fire which cle .stroyed the property of the plaintiff on the 9th of April, 1888, in the town of Tavares, originated from sparks emitted from an engine which left Tavares on the morning of the fire, ran over the track of the Sanford & Lake Eustis Railroad Company, and that the
We do not see that the judge erred either in instructing the jury as he did, or in refusing to charge as he was requested by the defendant. If one railroad company operates a railroad under a lease from another, it is responsible for its negligence to persons injured thereby, and the invalidity in law of the léase is no defence to the lessee company against liability'to persons suffering by its negligence. If its possession or operation of the road is, in law, unauthorized, it is no less the author of the injuries its want of care may proximately inflict upon them, and it cannot use one wrong as an excuse for or bar to liability for another which it could not have inflicted but for the first. 3 Wood’s Railway Law, sec. 489, 490; Rorer on Railroads, 606; Sprague vs. Smith, 29 Vt., 421; McCluer vs. Manchester & Lawrence R. R., 13 Gray, 124; Wasmer vs. Delaware, L. & W. R. R. Co., 80 N. Y., 212; Clany vs. Iowa Midland Ry. Co., 37 Iowa, 344; Pitts
The defendant company was in possession and operation of the road and the train was under the control
IT. There is testimony to the effect that on the morning of April 9th, 1888, as a train of cars drawn by a locomotive of the defenla-nfc company started from Tavares, a large quantity of sparks, cinders and coals were emitted from the smokestack of the engine, and fell on the ground and side walk in front of buildings facing on the street or boulevard which intervened between these buildings and the railroad track, and in one instance inside of one of the buildings from nearly opposite to which the train started, setting fire in a number of places, to saw dust on the street near a pine Avood side-Avalk which, aaus adjacent to the buildings, and to trash which had collected under the sidewalk, and to some paper on a case of goods in the particular building referred to; and the sidewalk, which was elevated a few inches from the ground, caught fire, and the fire Avas communicated under and to one of the stores, and thence to other buildings, including those of the plaintiff, whose buildings, constructed of pine wood, together with its personal property described in the declaration, were entirely consumed. That a very
The testimony of certain witnesses of the defendant
It is insisted by defendant that the burden of proving negligence, which burden is on the plaintiff, is not met by showing the mere fact of the setting out of fires by sparks emitted from the defendant’s engine, but that he must go further and prove that the sparks were emitted negligently, which negligent emission, it is admitted may be proved by circumstances of a character to raise a presumption of negligence, which presumption, however, may be successfully rebutted; and defendant insists, that even if plaintiff’s testimony is
The trial judge refused the plaintiff’s request of á charge containing the proposition that if the jury were satisfied from the evidence that sparks came from the locomotive and caused the fire, which, spreading, destroyed plaintiff’s property, the burden of proof rests on the defendant to show that he ivas not negligent; but, on the contrary, he instructed them in accordance with the view requiring the plaintiff to prove that the fire was set out by the defendant negligently or through some default of duty or proper care on its part. Wharton on Negligence, sec. 870; Shearman & Redfield on Negligence, sec. 57-60; Pierce on Railroads, 437, 438; 1 Redfield on Railroads, 476; 2 Rorer on Railroads, 796; Savannah, Florida & Western Ry. Co. vs. Geiger, 21 Fla., 669; Jennings vs. Pennsylvania R. R. Co., 93 Penn. St., 337; F. & B. Turnpike Co. vs. P. & T. R. Co., 54 Ibid, 345. That negligence may be proved circumstanially, there can be no doubt either in reason or upon authority. A. T. & S. F. R. R. Co. vs. Bales, 16 Kansas, 252; Philadelphia & Reading R. R. Co. vs. Schultz, 93 Penn. St., 344. The fact that no instrument has yet been found which entirely
The testimony in behalf of the plaintiff shows an extraordinary escape of sparks of sparks, both in quantity and size. The witnesses who testify to this are numerous, and the terms in which they describe them cannot fail to impress anyone, if the facts were as represented by them, that the emission of sparks was in all respects far in excess of anything likely to occur in the ordinary operation of a locomotive dxily supplied with modern appliances approved by the test of use, and properly managed by competent operatives. This testimony was of itself, to say no more now, sufficient to raise a presumption of negligence upon the part
In Brushberg vs. Milwaukee L. S. & W. R. Co., 55 Wis., 106, the issue was whether the fire which destroy ed plaintiff ’ s barn was caused by the negligence of the railway company; the defendant’s evidence was that the engine was perfect in all respects, and supplied with all suitable appliances for preventing the escape of sparks, and run in a careful manner, and that the spark-arrester and fire box were both closed so that no dangerous sparks or fire could escape ; and the testimony of the plaintiff was not only that the barn was found on fire after the engine passed, but that when passing it the engine wras emitting sparks in great numbers and coals an inch or more long; that some of these struck the barn and some went under it; that coals of a similar size were seen immediately after on the track and beside the track in the immediate vicinity of the
Tlie application of these authorities to the testimony of the case before ns is patent. An inspection of the piece of the netting in evidence, with meshes one-eighth of an inch square is, to say nothing of the testimony of the engineer and foreman boiler maker enough to satisfy anyone that the larger coals could not have passed through the arrester if the door had been kept closed, or the arrester in proper condition. This impossibility rendered the testimony of the plaintiff’s witnesses and that in behalf of the defendant on the subject of the engine’s having a spark arrester, or admitting that it had one, of its proper management, and hence on the issue of negligence 'oel non, absolutely irreconcilable, and it made a question of credibility of witnesses, the decision of which the law remitted to the jury, who have settled it in favor of the plaintiff; and under the jurisprudence governing us, this court cannot interfere, whatever may be its view as to the correctness of their judgment. There is nothing in any case cited by the appellant that is inconsistent with these conclusions.
It is urged under this head, that certain charges given to the jury were erroneous. These are the 3rd, 14th, 19th, 20th, 22nd and 23rd. The objection urged against the 20th charge is, it affirms that the defendants were required to exercise the “utmost care,” under the circumstances indicated in the charge. The authorities relied upon in support of the objection are,
The Michigan case is one in which the plaintiff’s building- was destroyed by fire communicated by sparks flying from defendant’s engine. The lower court, says the opinion, charged the jury that regard must be had to the actual state of things at the time, the force and direction of the wind, dryness of the .weather and proximity of the building to the railroad, and that what might be ordinary care on a still and wet day, might not be on a windy and dry one, and when near combustible matter; the question still being what care a. prudent man would exercise in precisely similar circumstances. There had been full testimony upon the character of the engines and stacks, and the use of the proper means to render them as secure as possible from doing mischief by the discharge of sparks, and this charge was independent of any question as to the quality and character of the equipments as suitable to be used. This rule was held to be incorrect, the Supreme Court saying: that railroad trains cannot deviate from their track, and must make schedule time, not only for purposes of business, but
There is nothing in any of these authorities that requires us to hold the use of the word utmost to be fatal to the charge. The Pennsylvania court uses the same expression asserted here as being objectionable in the •charge. hTothtng need be said of the section in Wharton’s work, nor of the Kansas case, and we think that the meaning of the Michigan decision is the same as that in Kansas, which is, that where there is no negligence upon the part of the railroad, it is not liable for ■damages attributable solely to the wind, damage which the exercise of proper care was unable to avoid. In neither of them was the locus of the injury in a village or town.
In Fero. vs. Buffalo & State Line R. R. Co., 22 N. Y., 209, the charge was, that less care is required of railroad companies while running their trains in the
In view of the New York and Pennsylvania cases we do not say, and do'not think there was error in the
In one of these charges it is said that the engine must have the “most approved appliances,” to prevent the escape of sparks, and another that a railroad company should provide engines with “modern appliances,” in another, the 23d, the view announced is, that the engine must have been supplied with “a spark-arrester of the best mechanical. invention and construction in general use at the time.” These charges were all given at the request of the plaintiff. Instructions given at the request of the defendant are, in so far as they relate to the character of the appli
The language of the twenty-third charge is excepted to as too stringent. Of the six authorities cited by counsel for appellant, on this point, we have access to Wharton’s Negligence, sec. 872; Frankford & Bristol T. Co. vs. P. & T. R. Co., 54 Penn. St., 345; Steinwig vs. Erie Ry. Co., 43 N. Y., 123; Jefferies vs. P. W. & B. R. Co., 3 Houston, 447. These authorities, taking them in their order, hold, the’ first, that a company cannot be required to use the “most perfect possible contrivance to prevent the escape of sparks,” and until the contrivance “ has been accepted in general use a company cannot be charged with negligence in not
The charge excepted to considered alone, or in connection with the others, does not violate these authorities. The several instructions set forth the law correctly and in accordance with the current of authority.
III. The defence of contributory negligence, is asserted in the fifth plea, and it is attempted to maintain it by evidence which tends to show that there was an accumulation of trash in the'streets and under the sidewalk, where the fire was set out, and under the store or building of Lester, to" which it communicated, and from ■ which it spread to other buildings, including those of the plaintiff. There is nothing in the record that connects the plaintiff in ownership or control of the street or sidewalk where the fire was set out, or of the Lester premises, or in responsibility of any kind for their condition; yetjjit is contended that as the owner or keeper of the Lester^premises, and the authorities of the town of Tavares, were negligent, and thereby they contributed to whatever' injury they respectively may
These charges are as follows:
6th. That the plaintiff is not charged with the duty of keeping the streets or the sidewalks of the town in good condition or free from trash ; that the fact that there was trash in the streets or under the sidewalks, or that the sidewalks were made of inflammable material, does not constitute contributory negligence so as to prevent plaintiff from recovering ; that contributory negligence to prevent recovery must be some omission of duty which the plaintiff was compelled to perform, or some act by him concurring in the destruction of his property; that the owner of property is not compelled to keep his property in such a condition as to guard against the negligence of a railroad company.
4th. The contributory negligence of the plaintiff, in order to defeat a recovery, must be such as contributed as a proximate cause to the occurrence from which the madage arose, and it must be the negligence of the
15th. That to charge the plaintiff with contributory negligence, defendant must show by affirmative testimony that the plaintiff did something, or failed to do something, which it was the duty of the plaintiff to do, or not to do, that concurring in causing the fire or the spread of the fire to plaintiff’s property, and which tended to produce the destruction thereof, and that the burden of proof is on the defendant to show such contributory negligence.
These charges considered as bearing upon the negligence of the town authorities and Lester, are, in the light of the testimony, which fails entirely to show any privity or responsibility of plaintiff with or on account of either of them, entirely in consonance with the law as we find it written in the books. Had the judge submitted to the judgment of the jury the question as to whether the contributory negligence of a stranger is a defence to plaintiff’s action against a negligent defendant, he would have grievously renounced, for the time, his own proper function of instructing the jury as to the law of the case, and made them, instead of the court, judges of the law.
There is nothing -in the authorities cited by appellant (Pierce on Railroads, 434; Coats vs. Missouri, Kansas & Texas Ry. Co., 61 Mo., 38; Ohio & Mississippi R. R. Co. vs. Shanefelt, 47 Ill., 497; Chicago
That the plaintiff was not bound to keep guard against the negligence of the defendant, but has the right to enjoy his property in the ordinary manner, and that while he is charged with the duty of saving his property from destruction, if it can be saved, he is under no obligation to stand guard over it continuously watching it to protect it from the negligence of the defendant, is a proposition of law too clearly correct to admit of any controversy, and nothing in the authorities cited by appellant question it, and the same is true of the charge that the fact that the jdaintiff’s property was exposed to the reach of sparks of a locomotive engine is no defense to an action of this kind, and the plaintiff has the right to construct his buildings on any part of his property, and to enjoy the same without rendering himself liable to the negligence of the defendant.
There was no error in the fifteenth charge. L. & N. R. R. Co. vs. Yniestra, 21 Fla., 700. Neither the plaintiff’s, nor the defendant’s evidence shows any contributory negligence.
IY. The appellant also assigns as error the refusal
“That if the jury b'elieve from the evidence that at, the time of the fire the property of the plaintiff, or any part of it, was in the hands of a tenant or a lessee of the plaintiff, the relation of such tenant or lessee to the property in such as to require him to take reasonable care to prevent damage and loss of said property; and if they believe from the evidence that the property of the plaintiff, or any part of it, at the time it was destroyed, was in the possession or control >of said lessee or tenant, and that he failed or neglected to save said property, or any part of it, from destruction, which he could have done by reasonable care and diligence, then the plaintiff cannot recover from the defendant for that part of the property destroyed in consequence of said failure or neglect.”
We are not prepared to say that the charges requested would not have been proper if there was testimony in the record to support them. But if they
AYhat has been said covers also that part of the fifteenth charge bearing on the same point.
Y. Appellant’s counsel insist “that the questions propounded to the witnesses A. N. Lester, J. S. Er-
The authorities hold that where it is shown, as it is in this case, that the fatal lire has been set out from a designated engine, it is admissible to introduce evidence of other fires previously set out by the same engine, but not by any other engine of the defendant company. Ireland vs. Cincinnati, Wabash & Michigan R. Co., 79 Mich., 163; Coale vs. Hannibal & St. J. R. Co., 60 Mo., 227; Brighthope Ry. Co. vs. Rogers, 76 Va., 443, S. C., 8 Am. & Eng. R. R. Cases, 710; Gibbons vs. Winconsin Valley R. Co., 58 Wis., 335, S. C., 13 Am. & Eng R. R. Cases, 469; Slossen vs. B., C. R. & N. R. Co., 60 Iowa, 215; Lanning vs. Chicago, Burlington & Quincy Ry. Co., 68 Iowa, 502; Baltimore & Susquehanna R. Co. vs. Woodruff, 4 Md.,
YI. Upon the questions of proximate and intervening cause the court gave the jury the following instructions, (numbered here as in the record), at the re
5th. “That if the jury believe from the evidence that the sparks from the defendant’s engine caused the fire and that the spread of the said fire could not have been arrested, or was not occasioned by any new or intervening force, it does not matter whether the buildings belonging to the plaintiff that were destroyed were the first or the tenth. The original fire must be regarded as the proximate cause of the burning of the buildings.” This charge is assigned as the lQ6th error.
(2d instruction given by the court on its own mo
3d charge by the court: “To entitle plaintiff to recover, the defendant’s negligence must be the proximate cause of the accident which produces the damage, without intervening carelessness on the part of the plaintiff, in which event he would become the author of his own misfortune, unless, by ordinary care, he could not have avoided the consequences of defendant’s negligence.” This charge constitutes the 133d error assigned.
The 15th instruction requested by the defendant on the subject was also given as follows : “The court instructs the jury that the immediate or proximate cause of an injury is that which immediately produces it as, its natural consequence.”
Upon the same questions the court below refused to' give the following instructions, numbered as in the record, requested by the defendant: 16th. “The court, further charges the jury that should they believe from the evidence that the negligence of the defendant, caused the origin of the fire on the 9th day of April,. 1888, in the town of Tavares, yet if they further believe from the evidence that the wrongful act or wilful omis
17th. “ The court further charges the jury that although they may believe from the evidence that the fire originated from sparks emitted from the smoke-stack of defendant’s engine, and that too by the negligence of the defendant, yet if they further believe from the evidence that some new intervening force or agency carried the fire from where it was first started, beyond its natural or proximate sequence, to the property of the plaintiff, whereby it was destroyed, defendant is not liable for the destruction of plaintiff’s property, .and the jury should so find.” The refusal of the court to give this charge is assigned as the 123d error.
- 18th. “The court further instructs the jury, that although they may believe from the evidence that the defendant negligently permitted sparks to escape from the smoke-stack of its engine on the 9 th day of April, 1888, in the town of Tavares, whereby fire was communicated to buildings, and the flames from which were communicated to the property of the plaintiff, which were thereby destroyed, yet if they believe from the evidence, that after the beginning of said fire, and
14th. “The court charges the jury that, although they may believe that the defennant was guilty of negligence in setting out fires from its engines in the town of Tavares on the 9th day of April, 1888, it can only be held liable for the immediate, or proximate, and not the remote causes of the injury resulting therefrom.” The refusal of the court to give which charge is assigned as the 121st error.
After full consideration of the evidence as to whether it furnishes any groundwork for the suppositions premised in these four instructions that were asked and refused to be given, we are unable to see that there was error in such refusal so to give them. And this, for two reasons: 1st, because we fail to discover in the record any modicum of evidence even that would fur-. nish a basis for the premises supposed in the first three of these instructions. As to the sixteenth instruction above, that was asked and refused to be given, the premise upon which the defendant sought
And so with the 18th instruction above, asked and refused to be given it is premised upon the assumption of the fact that: “A fresh wind of additional force arose and carried the flames to the property of the plaintiff,” &c.; but we fail to see in the record such proof from which this assumption of fact could reasonably have been deduced sufficient to predicate
It is well settled that instructions of law must be predicated upon some evidence that has been introduced at the trial; and that a refusal to give instructions that are mere abstract propositions, not based on any color of evidence in the case, affords no ground of exception. Randall vs. Parramore & Smith, 1 Fla.,
2d* The other or second reason why we- think there was no error in the refusal to give the above? four instructions asked by the defendant, is,, that: we? think, the substance of the propositions of law contained! therein, in so far as they were proper,, are fully- embraced in and covered by the instructions,above- quoted, that were given by the court. The instructions- given? embrace the law as fully as was warranted by the-evidence in the case. The 14th refused instruction- above might properly have been given, as it states the lawr eorreetly and contains no assumption of fact not warranted by the evidence, but its proposition of law is: fully covered in substance by the instructions that were given; and there was, therefore, no error in the discard thereof by the court. Nickels & Gautier vs. Mooring, 16 Fla., 76; Wooten vs. State, 24 Fla., 335.
The proposition of law desired by the first three of the above discarded instructions to be impressed upon the jury, was, that the defendant company was not liable for the destruction of the plaintiff’s property by the fire originated through the defendant’s negligence, if, from the evidence, it appeared that some new independent agency intervened, and that such intervening-agency caused the destruction of plaintiffs property. While, as before stated, we have been unable to find any evidence upon which to build the theory of ‘ ‘ in
In Fent vs. T. P. & W. R. W. Co., 59 Ill., 249, a case almost on all fours with the one under consideration, in which a loccnnotive, passing through a village, threw ont great quantities of unusually large cinders, and set on fire a warehouse near the track, from which the plaintiff’ s building was destroyed 200 feet distant; the weather at the time being very dry, and the wind blowing freely. Chief-Justice Lawrence, rendering one of the ablest opinions upon this subject we have seen, in which many authorities are reviewed, says: “We believe there is no other just or reasonable rule than to determine in every instance whether the loss was one which might reasonably have been anticipated from the careless setting of the fire, under all the circumstances surrounding the careless act at the time of its" performance. ’ ’ ‘ ‘If loss has. been caused by the act, and it was, under the circumstancefs, a natural, consequence which any reasonable person could have anticipated, then the act is aproxímate cause, whether the house burned was the first or the tenth, the latter being so situated that its destruction is a consequence
Whether the injury complained of is the proximate result of the defendant’s negligent act, or whether the injury was too remote, from the original cause and was brought about by some independent intervening force or agency, are questions of fact peculiarly and exclusively within the province of the jury to determine. These propositions, though not in the same propositions, though not in the. same forms of expression here used, are substantially embraced in the instructions above that were given; and the soundness of them as propositions of .law are fully sustained by the following authorities: Penn. R. R. Co. vs. Hope, 80 Pa. St., 373; A. T. & S. F. R. R. Co. v. Bales, 16 Kansas, 252; A. T. & Santa Fe R. R. Co., vs. Stanford, 12 Kansas, 354; Clemens vs. Hans. & St. Jo. R. R. Co., 53 Mo., 366; Peoppers vs. Mo., Kan. & Tex. Ry. Co., 67 Mo., 715; Perry vs. So. Pac. R. R. Co,, 50 Cal., 518; L. N. A. & Chi. Ry. Co. vs. Krimming, 87 Ind., 351; Doggett vs. Rich. & Dan. R. R. Co., 78 N. C., 305; A. & E. R. R. Co. vs. Gantt, 39 Md., 115; Kuhn & Nebb vs. Jewett, Receiver of Erie Ry. Co., 32 N. J, Eq., 647; Murphy vs. Chi. & N. W. Ry. Co., 45 Wis., 222; Rigby vs. Hewett, 5 Exch., 239; Smith vs. London & So. Wes. Ry. Co., Law reports, 5 C. P. Cases, 98; Kellogg vs. Chi. & N. W. Ry. Co., 26 Wis., 223.
The following clause in the 5th instruction asked
8th. (Ueneial charge by the court.) “If the jury believe from the evidence that the lire which destroyed phtintiff’ is property was caused as laid down in the declaration, by the negligence of the defendant as a proximate cause, and that no negligence of the plaintiff concurred as contributing to the result, the plaintiff is entitled to recover from the defendant the value of the property destroyed at the time and place of its destruction, which value you must arrive at from the evidence, with eight per cent, per annum interest added from the 9th of April, 1888, to this time.” (188th error assigned.)
Upon the same question the following instructions ts ere asked for by the defence, and refused to be given by the court, numbered here also, as in the record, to-wit: 28th. ’“The court instructs the jury, that should they find from the evidence that the defendant is liable for the burning of plaintiff’s property, in estimating the damages for the property destroyed, they must l e
29th. “ That it devolves upon the plaintiff to prove by a preponderance of evidence, the market value of the property destroyed.” (Its refusal is assigned as the 129th error.)
30th. “That should the jury find from the evidence, that defendant is liable for the burning of pfaintiffs property, in estimating the damages resulting therefrom, they are confined to the market value of the property destroyed at the time and place of its destruction, and they are not to be governed alone by the cost of the property to the plaintiff; but they may take into consider ation the age of the property destroyed, its deterioration from use, its situation, the quality of its materials, and all other facts given in evidence which bear on the market value of the property at the time and place it was destroyed.” (Its refusal is assigned as the 130th error.)
The law as to what is the “measure of damage” in the abstract, in cases where the property of one has been destroyed, unintentionally, but by the negligence or carelessness of another, where there is no element of wilfulness or maliciousness in the destruction, is well settled to be “just compensation in money for the property destroyed 5 such an amount as will fully restore the loser to the same property status that he oc
Wherever there is a well known or fixed market price for any property, the value of which is in controversy, it is proper in establishing the value to prove such market value; but in order to say of a thing that it has a market value, it is necessary that there shall be a market for such commodity; that is, a demand therefor, an ability, from such demand, to sell the same when a sale thereof is desired. Where, there
It is also contended by appellant that the sole pro >' of value, excepting the evidence of Randolph as to fcu >. rental payable by him, is by or upon the theory of proving cost and then the depreciation, and making -this the test of value.
Mr. Alexander Uf. Clair Abrams, a witness for plaintiff, was permitted, without objection from defendant, to describe minutely the hotel, which was originally built in 1882, and enlarged, in 188(5, to a, four story building with tower, and the kind and quality of the timber and materials of which it was constructed, furnished, plastered and painted. lie says when the building was first put up he was present acting as the’ superintendent of it almost every day, and then owned a saw mill at Tavares, at which the lumber put into the building was manufactured from the best logs. He also described with fullness the other buildings, and the furniture and other personal property belonging to the plaintiff company involved
He also testified, subject to the objection that it was improper and incompetent, that he had the store at the corner of N ew Hampshire avenue constructed, and was there nearly every day, and his office was on the second floor, and personally made repeated examinations of the building; as he did all his other buildings in Tavares, and it with its annex cost $4,000; several hundred dollars being spent for certain decorations which had been taken away before the fire; and the bxdlding, with its annex, he, from his knowledge of
That in estimating the value of the hotel at the time of the fire he makes allowance for the deterioration of the building ; that the deterioration of a building of that character—a wooden building of yellow pine—depends largely on the quality of timber put into it. If it is clear heart lumber free from windskakes or knots,
He also stated, under objection, that it was “improper, &c.,” the cost of the furniture and outfit of the hotel was nearly $15,000, gross, or $14,600 or $14,700 exclusive of the freight. He gives the cost of a great many, if not all, of the separate things composing this outfit. He states that he was thoroughly acquainted with this property on the day of the fire, and was familiar with its value at that time, having bought and sold furniture for nearly five years in Tavares, and having stayed in the hotel neai-ly all the time up to a short time before its destruction, and had, several days before the fire, taken a Mr. Roost over the entire building, with the view of renting it to him for the ensuing year, and therefore examined everything but a few days before the fire. The furniture, he says, was
lie states that the counters, shelving, etc., in the first store cost $1,150 or $1,200, and shows his familiarity with them. lie does not state their value; gives the cost of the life jueservers, maj)s and harness as $2,000, and their value at the time of the fire at $1,000; that he jmrcliased the entire outfit of jninting material in Cincinnati, and published and edited the Tavares Herald for several years; that it cost $1,600 there, and j>art of the furniture for it he had made at Tavares at a cost of about $100, and lie estimates the value of this property on the day of the lire at $1,200; a large amount of the type had never been used.
W. P. Floyd, a carpenter, who says he superintended the work of enlarging the hotel, he having had charge of the carpenter and mason work, testifies that he made an examination of the original building before enlarging it, and found the sills sound and the plastering good, and says all heart jrine was put in the new building as near as he could get it, the lumber being selected and the framing being sawed out esjieci
J. H. Sears, a practical carpenter and builder of 44 years experience, and who has done building in Florida for about two years before the fire, and at Tavares, and is familiar with the price of lumber, building material and labor, upon being given specifications, diagrams and photograph as descriptive of the hotel, was asked to state what it would have cost the plaintiff to have such a building constructed on the 9th day of April, 1888, the day of the fire.' The question was objected to as not stating a proper hypothetical case to be submitted to the jury under the facts of the case at bar, and as too indefinite, and offering too wide a latitude,
AY. A. Miller, a contractor for buildings of all-kinds, who has been engaged in the business for five years, and lives at Sanford, Florida, and was familiar with the price of material and labor in 1838, and at the time of the fire, stated in answer to a question like the first given above as propounded to Sears, the same objection and ruling and exception being made, said it would have cost $30,000, and that there -would have been no deterioration in such a building in two years.
(x. E. Pearce, a contractor for thirty years, and for eight years in South Florida, and familiar with the cost of labor and building material in April, 1888, replied to the same question, under the same objection, ruling and exception, that it would have cost $27,964.20; that he had a personal knowledge of the price of lumber and woodwork, and some acquaintance with' the building, had been in it, but his lmowlege of the building did not, aid him in making- the estimates; that there would have been 5 per cent, depreciation in the building for the two years in that locality, and supposing one-third of it had been constructed in 1882,
W. T. Cotter, a witness for defendant, carpenter and builder of all kinds for 25 years, and has built all classes of buildings in Florida, in answering the same question, put the estimate at $18,000, and says he would have built it for this price; and that the corner store could have been built for $2,500, correcting a previous estimate of $4,000 ; and that the second store could have been built for $1,000. He states the depreciation' of buildings in Florida to be from 5 to 7 per cent.
J. K. Barrett, a witness for plaintiff, who wms, in charge of the hotel from December, 1885, to April 20th, 1886,- it having been refitted after he took charge, and has been in the hotel business twenty years, describes the furniture and outfit, and estimates its value as of that time at from $7,000 to $7,500.
E. S. Newell, a witness for defendant, and steward in the hotel from December, 1887, to February 2-2d, 1888, considers $3,000 a very liberal estimate of value, lie says furniture in hotels when the lease changes at short periods depreciates from 20 to 25 per cent.
D. S. Randolph, the lessee of the hotel from December, 1887, up to the time of the fire, says the lease was at $100 per month, he to put in all repairs; that when he rented, Mr. St. Clair Abrams said the house was in such bad condition he thought of shutting it up, and would not put in any repairs. His estimate of the value of the furniture is $2,575, and says the annual
There is an irreconcilable conflict between Newell and Randolph on the one side, and Mr. St. Clair Abrams on the other, as to the quantity, quality and condition of the furniture in the hotel, but it is sufficient, without mentioning particular points in which other witnesses sustain the last named witness, to say that the jury has settled this. Mr. St. Clair Abrams also states that the terms of the lease had been changed to a percentage on the gross income over a certain sum, which is denied by Randolph. Randolph also stated that a great many panes of window glass were out, and that the house leaked.
The amount which it would have cost to erect buildings of the same kind on the day of the fire, less a proper deduction for deterioration, is not the proper measure of damages in a case of this kind. In Burke vs. L. & N. R. R. Co., 7 Heiskell, 451, where the plaintiff’s dwelling and contents had been destroyed by fire communicated by sparks from the railroad company’s locomotive, the jury were instructed that the measure of damages would be just what it would cost in cash at the time and place of the burning to replace the house and each article consumed in it. This was held to be inaccurate, and calculated to produce confusion in the estimate of damages, and the better instruction to be that the measure of damages would be the value of the property destroyed at the time and place of the destruction. In L. B. & M. R. Co. vs.
The value of the property at the time and place of the fire, is the question the j ury is to pass upon. This court charged and the plaintiff admitted. Market value is'what-a thing will sell for, P. & N. Y. R. Co. vs. Bunnell, 81 Penn., St., 414. To make a market, however, there must be buying and selling. Blydenburgh vs. Welch, 1 Baldwin, (U. S. Ct. Ct., 340. Property may have a value for which the owner may recover if it be destroyed, although it have no market value. A. T. & S. F. R. Co, vs. Stanford, 12 Kan., 354, 380. “Suppose,” asks the court in the case just cited, “a rod of railway track, or a shade tree, or a fresco painting on the walls or ceiling of a house, or a bushel of corn on the western plains, should be destroyed; could there be no recovery for these articles simply because there might be no actual market value for the same? To fix the market value of a thing, it seems to us that there must be a selling of things of the same kind. If there had ever been a sale of a hotel,
The suggestion of appellant’s brief that what a building is used for, whether it was a home or a business house, what income was derivable from it, where was it located, what its surroundings, enter into the con
The question of value in cases where, as here, there is no market value, is one peculiarly for the jury. Nothing has been permitted to go to this jury which it was improper for them to consider in coming to a conclusion as to the value of the several kinds of property involved. It cannot be assumed that there were other persons who would have testified to facts or circumstances other than those shown by the record, of a character to influence the jurors to a lower estimate of the values, or have themselves placed a less value on the property. The jury has returned a verdict according to its judgment, and it is undeniable that they have not given the plaintiff the benefit of the several values insisted upon by the plaintiff’s chief witness, but it is
VIII. Upon the question of the'allowance of interest a scatter of right, upon the amount of damages found by the jury, from the' date of the destruction of the property in cases like this where the damages sued for are unliquidated, the following authorities, with others that we have examined, hold in effect, “that the jury may, at their discretion, allow and include interest in their verdict as damages, but not as interest eo nomine: 2 Sedgwick on Measure and Damages, p. 190; authorities cited in note to Shelleck vs. French, 6 Am. Dec., 197; Black vs. C. & A. R. R. & Trans. Co., 45 Barb. (N. Y.), 40; Central Railroad vs. Sears, 66 Ga., 499; Lincoln vs. Claffin, 7 Wall., 132; Garrett vs. Chicago & N. W. Ry. Co., 36 Iowa, 121; Brady vs. Wilcoxen, 44 Call., 239. In all these authorities no other reason is given for this rule than that it has been so held in other cases that have gone before them ; except that in a few cases it is put upon the ground that where property is wrongfully taken and withheld, the defendant gets the benefit of its use during the detention, and is required to pay interest as compensation for such use, ■when in cases of property wrongfully destroyed the de
In Ancrum vs. Slone, 2 Spears (So. Ca.), 594, in which this question of interest is discussed at greater
It is obvious, regard being liad to such compensation, which constitutes the foundation of the rule, that the giving of interest is as essential in this case as in any of the others. It is immaterial to the party who has lost his property, whether it has been taken and converted, or negligently destroyed by the other. His loss is the same in either'case, and in either case he should be entitled to the same compensation.” This view of the law accords fully with ours, and seems to be sustained also by the following authorities: 1 Sutherland on Damages, 174; F. E. & M. V. R. R. Co. vs. Marley, 25 Neb., 138; Mote vs. Chicago & N. W. R. R.
IX. It is claimed that the court erred in giving to the jury the 7th instructions reqested by the appellees, which is as follows : “That if the jury believe from the evidence that the defendant, or the defendant’s agent at Tavares, had knowledge of the condition of the streets, and of the sidewalks, and had knowledge that there was trash on or under the sidewalks, and that the sidewalks were of inflammable material, such knowledge can be considered by the jury in connection with the question of negligence in permitting the emission of sparks in large and dangerous quantities and of unusual size from the locomotive, if the jury believe from the evidence that such sparks were emitted.” (Assigned as the 108th error.) The effect of this charge, though framed with cautious ingenuity, was to say to the jury: “That in considering the question of negligence on the part of the defendant company, the knowledge of the company’s agent at Tavares of the inflammable condition of the sidewalks, could be regarded as the knowledge of the defendant company, and that such knowledge might be regarded as an element of negligence. ” It is now no longer an open question, but well settled, that notice to an agent, to be binding upon his principal, must be concerning some
We are not satisfied, in the absence of some definite evidence or better knowledge than we have, assuming that such knowledge can be invoked, as to the extent of the duties of a local or station agent, that notice to this agent was in law notice to the company, and therefore to the engineer managing the train, and though the charge may be erroneous, we do not think it could have had any material effect on the conclusion of the jury as to the question of negligence.
The question of negligence in this case, as shown by the discussion of it in the second .paragraph of this opinion, resolved itself into one of the relative veracity of the witnesses of the plaintiff, and those of the defendant, upon the issue of the emission of sparks as claimed by the plaintiff, and the presence of a proper
X. The 118th error assigned is the giving of the 14th charge requested by plaintiff below, as follows: ‘ ‘That in cases of this kind, the jury have the right to infer negligence from the circumstances of the case; that circumstantial evidence alone would authorize the finding of negligence, and that the jury have the right to presume from the escape of sparks in large and dangerous quantities, and of unusual size, from the smokestack of the locomotive engine, and at different times from this same engine, that the engine either did not have the most approved appliances to prevent their escape, or that the said appliances were not properly adjusted so as to prevent their escape, or that the en
XI. The refusal of the court to permit defendant’s
The origin of the lire was an independent, isolated fact, standing out by itself alone, that was necessary to be proven by direct, independent facts or circumstances, and a knowledge of such fact is possessed, by any person, such person should have been produced and his knowledge thereof detailed under the sanctity of an oath as a witness on the stand. To have permitted the witness Dupont to state what he heard some one say was the origin of the fire would have been to admit hearsay evidence pure and simple. Green-leaf, sec. 108, vol. 1, in discussing the exceptional cases wherein hearsay evidence is sometimes permitted, says: “The principal points of attention are, whether the circumstances and declarations offered in proof were cotemporaneous with the main fact under consideration, and whether they were so connected with it as to illustrate its character.” The attempt here was not to introduce declarations or circumstan
In this connection it is also contended that the court, in plaintiffs favor, committed the thirty-thinl error assigned, in permitting the plaintiffs witness J. H. Sears, to relate a. remark that he, Sears, himself, made at the time he and one Terry were trampling out large coals of tire along the sidewnlk, to-wit: “I remarked that if there were any coals underneath the plank walk we would soon have a blaze.” “The wind was blowing quite fresh at that sime.” And it is contended that the admission of this remark in evidence was the same in character as the testimony sought to be drawn from the witness Dupont. Where the parallelity or similarity lies between the two propositions, either in substance, or effect intended to be produced, we are
Nil. Another error assigned is the admission of certain evidence of one Gr. W. W. Davis, over defendant’s objection. The objection was that his testimony was the same as that of certain of plaintiff’s witnesses who had testified before the defendant’s witnesses, and that it was not admissible in rebuttal.
The authorities hold that it is within the discretion of the trial court to permit a plaintiff who may before resting have introduced enough testimony to make out a prima facie case, to introduce, after the defendant, additional proof in chief, as distinguished from proof in rebuttal, and the exercise of this discretion is not assignable for error except in cases of manifest abuse. Thompson on Trials, secs. 343-347. We do not see that there has been any abusé of discretion in this case. In view of the character of the defense on the question of negligence, and the fact that the decision of this question became one of the mere credibility of witnesses, we think the judge properly exercised that discretion in permitting additional witnesses to those first used, to prove the escape of sparks by the same engine, either at the same or other points, that morning. It does not appear that the defendant was placed a,t an unfair position, or suffered any disadvantage from the mere fact of these witnesses testifying-
XIII. There is sufficient testimony to sustain the verdict, and while there is on some points such conflict-between plaintiff’s witnesses and those of the defendant as makes this peculiarly a case in which an appellate court, cannot interfere, or disturb tlie finding of the jury, there is no such inconsistency or conflict, or unnaturalness in the testimony of the plaintiff's witnesses as can cause it to be said that no jury could believe them. - Their credibility was a question for tlie jury. Interest in or connection with other suits of the same character against the defendant, are circumstances affecting the credibility of witnesses; they do not disqualify the witnesses, but constitute a consideration with which the jury, and not tlie court, have to deal and have deal t. ,
The member of the court whose name appears at the head of this opinion, feels it is due to Ms associate, Mr. Justice Taylor, to say that lie prepared about the same number of the subdivisions of this opinion as were prepared by such member.
The judgment is affirmed.