129 P. 1055 | Mont. | 1913
delivered the opinion of the court.
The complaint in this action states three causes of action for damages to property, occasioned by fires alleged to have been started by the defendant railway company along its Plentywood line of road, in Yalley county. It is alleged that the first fire occurred on September 18, 1910; the second on April 11, 1911; and the third on April 21, 1911. It is charged that these fires were caused by the negligence of the defendant company, and that certain stacks of hay, and the grass, pasturage and vegetation on plaintiif’s land were destroyed. The answer admits the defendant’s corporate existence and its operation of the Plenty-wood line of road, but denies all the other allegations of the complaint. The trial resulted in a verdict and judgment in favor of plaintiff, and it is from that judgment that this appeal is prosecuted.
1. Counsel for appellant insist that the trial court adopted an erroneous theory as to the measure of damages, and it is said that this is made apparent from the rulings admitting certain evidence, and the refusal to give certain instructions requested by the defendant.
(a) Specifications of errors 1, 3 and 6 relate to the admission of evidence to the effect “that by reason of the fire the land in question burned over, produced no crop to speak of in 1911; that the fire running over blue-joint hay land, such as this ‘in
No fault is found with the rule just stated, but counsel for respondent contend that the evidence was properly admitted under that rule, for the purpose' of showing the extent and character of plaintiff’s injury, and with this we agree. If the fires did not cause any injury whatever, then the plaintiff’s case would fall of its own weight. This evidence tended to establish the fact that the inheritance itself sustained injury and the character and extent of that injury. There is hot any merit whatever in appellant’s contention; indeed, the very authorities cited by its counsel fully warrant the trial court’s action. (Railway Co. v. Jagoe; Terre Haute etc. Ry. Co. v. Walsh; Ward v. Railway Co., above.)
(b) Specification of error 2 has to do- with a question asked the respondent while a witness in his own behalf, as to the value of the crop of grass on his land in September, 1910, which was destroyed by the fire of September 18 of that year. There is
(c) Specifications 4, 5, 7 and 8 relate to rulings of the trial
(d) The court refused two instructions offered by the defendant, as follows:
“No. 3. You are instructed that the plaintiff is not entitled to recover in this action the value of any crop which he might have raised in 1911, upon any of the land burned over, referred to in the complaint.
“No. 4. You are instructed that the plaintiff is not entitled to recover in this action, for damage to the grass roots of the land burned over, referred to in the complaint..”
There was not any contention whatever that plaintiff was
It is somewhat difficult to comprehend just what was meant by instruction No. 4. The court should have advised the jury as to the proper measure of plaintiff’s recovery and the elements which might be considered in arriving at the amount of his re
2. Error is predicated upon the action of the trial court in excluding certain evidence. The defendant called Thomas Shea and A. H. Rollins, men employed by it in the shops at Willis-ton, and whose duties required them to inspect the ash-pans and spark-arresters on locomotives used on the Plentywood line at the time of the fire in September, 1910. When called to the stand as witnesses, at the trial of this cause, neither of these men retained any independent recollection of his work on the particular locomotive which caused the fire of September 18,
(a) Section 8020, Revised Codes, provides: “A witness is allowed to refresh his memory respecting a fact by anything written by himself or under his direction at the time when the fact occurred or immediately thereafter, or at any other time when the fact was fresh in his memory and he knew that the same was correctly stated in the writing. But in such case the writing must be produced and may be seen by the adverse party, who may, if he choose, cross-examine the witness upon, it, and may read it to the jury. So, also, a witness may testify from such a writing, though he retain no recollection of the particular facts, but such evidence must be received with caution. ’ ’
This section comprehends two classes of witnesses. The first class includes the witness whose memory can be refreshed by reference to the memoranda. The second class includes the witness who does not retain any recollection of the particular facts
(b) In those jurisdictions where the book containing the entries is admissible, it is required as a preliminary that the
3. Finally it is urged that the evidence is insufficient to sustain the allegations of the third cause of action, that the fire
A witness, Misfeldt, testified that he was on defendant’s train and saw it set the fire on plaintiff’s land on April 11, and two or three other fires between Medicine Lake and Plentywood.
We confess that this showing is very weak, and it is all the more inexcusable because it is perfectly apparent that better evidence could have been produced. The men who were fighting the fire on plaintiff’s place when Ator reached there were not. called or their absence accounted for. Even the witness Ator,- who saw the’ area burned, was not asked to state where that particular piece of land was situated with reference to the railway track or the direction in which the wind was blowing at the time. But with all these infirmities, we cannot say that the evidence is insufficient to warrant the inference that the defendant’s locomotive caused the fire. In each of the following cases a somewhat similar state of facts was presented, and it
The judgment is affirmed.
Affirmed.