79 P. 60 | Or. | 1905
delivered the opinion.
The plaintiffs seek to recover damages for loss by fire alleged to have been occasioned by the negligence of the defendant, its agents and employees. The verdict and judgment of the circuit court were for defendant, and plaintiffs appeal.
The defendant, to show that it had observed proper care and precaution in keeping its engines and the smokestacks thereof in suitable repair to prevent the escape, of sparks and fire, and the consequent injury to the property of others along the line of its railroad, called one Whitby as a witness, who testified that his occupation was that of a boilermaker; that he was and had been in the employ of the defendant; that he inspected locomotives at times, but that he could not testify from memory regarding any inspection of engine No. 400 — the one supposed to have done the damage. A book was then placed in his hands, and
On cross-examination the inquiry proceeded as follows:
“Q. Do you know those entries there to correctly report the examinations made on those dates? ’ '
A. They do.
Q. What do you recall about the inspections except from this memoranda?
A. When the book is given to me to sign, we have the memoranda right there, and look them over when we sign the book, to make sure it is right when we sign it.
Q. You make these memoranda on what — a book?
A. Yes, sir; a shopbook. * *
Q. The book is still there, which you made the original entries in?
A. I guess it is.
Q. It is not here, is it ?
*165 A. No, sir.
Q. The clerk makes this, and you sign them?
A. He keeps them, and copies them off of these reports.
Q. Who told you he copied it off?
A. I frequently see him.”
It is further shown that this book is signed by the inspector from the 1st to the 5th of every month following. The page alluded to had previously been offered and received in evidence without objection while Ellsworth, the inspector, signing as of dates December 2d, 3d, and 5th, was on the stand, and likewise the entire book had been offered and admitted, which shows the inspection of many other engines during the same month; but at this time there was an objection interptosed both to the memorandum, and to the witness using it, because it appears from the witness’s statement that he did not make the entries, nor were they made under his supervision. Ellsworth, while a witness, testified that he made his reports sometimes on stubs, requisition stubbooks — anjdhing to get them on — during the month, which he sent into the office, but that he had them before him when he signed up the exhibit. The objection to the memorandum itself is manifestly without merit, as at this time it had already been admitted in evidence without objection; and, as to the objection to the witness using it, we are of the opinion that it is also without merit, for the reason that the exhibit was already a matter in evidence, and, being so, there existed no good reason why the witness -should not have been examined concerning it, nor why he should not have made such statements touching the real facts as he was enabled to with its aid. However, as this ease ■must go back for a new trial on another point, we will state briefly the result of our investigation as to the admissibility and use of this memorandum for any pmrpose in the case.
“You are the judges of all the facts in the case, and should the defendant offer proof to establish the fact that the engines*170 and the particular engine claimed to have caused the fire was equipped with the best modern appliances generally used, and that it was in good repair, and operated by careful and skilled-mechanics, who were careful at the time, you will nevertheless take all the evidence into consideration, and determine ■ from the whole evidence whether this is true or not; and, in doing this, you will take into consideration any evidence tending to show that other fires were caused by engines of the defendant at other times shortly prior or subsequent to the fire alleged in the complaint, or whether engines of the defendant, or this particular engine, scattered coals or sparks or cinders at the time of this particular fire, or shortly prior or subsequent .thereto, in determining whether the defendant has been guilty of negligence or not.”
This the court modified so as to confine its application to the particular engine which it is claimed caused the fire, and its action in that regard is assigned as error. The particular engine that did the damage not having been identified by plaintiffs’ pleadings or proof, plaintiffs were entitled to the instruction requested: 2 Thompson, Negligence, 2371, 2372, 2373, 2374; Koontz v. Oregon Ry. & Nav. Co. 20 Or. 3 (23 Pac. 820). The ' one given had the effect of saying to the jury at the last that, although evidence had been admitted tending to show that other engines than the one claimed by the defendant to have set the fire had shortly previous, and subsequent thereto, in passing in proximity to the place, scattered and communicated the fire, they need not consider such evidence, but only such of the kind as related to the particular engine in question, in arriving at their verdict in the ease. This was error, for which the judgment of the circuit court will be reversed, and the cause remanded for such further proceedings as may seem proper.
Reversed,