103 Va. 105 | Va. | 1904
delivered the opixxion of the court.
This action was brought by the defendant ixi error, Bobert L. Bx'iggs, to recover from the plaintiff in error, the Norfolk & AYesterix Bailway Company, damages sustaixied by reason of the loss of a stock of merchandise by fire, which, it is alleged, was communicated to the building containing the merchandise in question from an engine of the plaintiff in error on the 13th of November, 1901.
The building was situated oix the east side of the raffway tracks at Ashby station, about thirty-three feet from the main line, and there was within fifteen feet of this building a warehouse. Oix the day named, the fire was discovered oix the roof of the warehouse, about twenty minutes after train No. 88, drawn by exxgixxe No. 169, had passed the buildings, going-north. The warehouse burned and communicated the fire to the building occupied by the defendant nx error, and both were totally destroyed.
It appears from the evidence that if the fire was caused by the plaintiff fix error it eminated from this particular engine.
The jury x*endered a verdict in favor of the defendant ixi errox’, assessffxg his damages at $2,600, with interest, and the court, having refused to set the verdict aside, rendered judgment thereon, and from that judgment the case is before us on a writ of error awarded by one of the judges of this court.
The first question to be considered arises out of the exception's taken to the rulings of the Cii'cuit Court, admitting evidence introduced by the defendant in error over the objection of the plaintiff in error.
The declaration charged that the fire was caused by sparks or ignited cinders thrown upon or against the building from one
After the introduction of evidence to show that the fire was ■communicated to the building from a certain engine in use by the plaintiff in error, which passed Ashby station about twenty minutes before the fire on the roof of the warehouse was discovered, defendant in error introduced evidence to prove that other fires had originated along plaintiff in error’s right of way, without showing first that these fires were set out by the engine alleged to have communicated the fire to the building at Ashby, or that they were set out by reason of plaintiff in •error failing to provide its engines with reasonably safe spark arresters; or to use due care and caution in the conduct and management of the engines from which these fires were communicated. The precise question therefore presented is whether or not, after the plaintiff, in an action of this character, has identified with certainty the engine alleged to have ■communicated the fire complained of, it is admissible to introduce other evidence as to fires having been communicated along the railway’s right of way, without having first shown that these other fires were communicated from the engine in question.
In Brighthope Ry. Co. v. Rogers, 16 Va. 445, the engine in question was identified, and the court held that evidence of other fires caused by the same engine was admissible.
In N. Y. P., & N. R. R. Co. v. Thomas, 92 Va. 606, 24 S. E. 264, such evidence was admitted without objection, and the court merely held that the lower court did not err in instructing the jury that it might consider this evidence after it had been 'thus admitted.
In Patteson v. C. & O. Ry. Co., 94 Va. 16, 26 S. E. 393, the
The case of Kimball & Fink v. Borden, 95 Va. 203, 28 S. E. 207, seems to sustain the admissibility of evidence as to other fires in a case like the present, but the record in that case shows that, after the offending engine was identified in the course of the trial, no evidence of fires caused by other engines was objected to, and, therefore, the question here under consideration was not involved in the ruling of the court.
In White v. N. Y., P. & N. R. R. Co., 99 Va. 357, 38 S. E. 180, the engine was identified, and all that was said by this court, which has any sort of bearing upon the question under consideration, was: “Notwithstanding these conditions, so inviting to fire from the sparks of a passing engine, it is an established fact in this case that no fire occurred at any point along the entire route other than that alleged in this case, as a result of sparks emitted by the engine in question after it came from the repair shops.” Whether or not this is to be considered as an implied recognition that the only evidence as to other fires which would have been competent, would have been as to fires caused by sparks emitted by the engine in question, it is not authority for the proposition that evidence is admissible as to other fires not shown to have been set out from the engine in question. Nor does the case of N. & W. Ry. Co. v. Perrow, 101 Va. 345, 43 S. E. 614, have any bearing upon the question here, as all of the evidence in that case was as to sparks emitted and fires caused by the same train which caused the fire in question.
Plaintiff in error here, as we have seen, is not charged with the general habit of negligence, nor with frequent defects in its engines; therefore, if convicted of negligence in this case it must be by proof of defects in the engine No. 169, or of the omission of duty upon the part of the crew which operated it
The question here under consideration has repeatedly arisen and been passed upon by the highest courts in other States, which have uniformly held that where the engine was identified which it was claimed had set out the fire, evidence as to other fires along the line of the railway, not shown to have been set out by the identified engine, is not admissible.
In Hygienic Plate-Ice Mfg. Co. v. Raleigh & Augusta A. L. R. R. Co., 126 N. C. 797, 36 S. E. 279, the opinion says: “This evidence of fires at various times and at other places, caused by sparks from other engines, both before and after August 29th, we must hold to be incompetent, as it does not tend to prove the condition of engine No. 228, nor to throw any light on the question directly before the jury. It is well calculated to divert the mind of the jury, and lead them to an unsafe verdict.”
In Henderson v. P. & R. Ry. Co. (Pa.), 22 Atl. 851, 16 L. R. A. 299, 27 Am. St. Rep. 652, it was held that where the injury complained of is shown to have been caused, or in the nature of the case- could only have been caused, by sparks from an engine which is known and identified, the evidence should be confined to the condition of that engine, its management and its practical operation. Evidence tending to prove defects in other engines of the company is irrelevant and should be excluded. That case, in many particulars, is very like the case here under consideration. See also Adkins v. Ga. Ry., &c. Co., 111 Ga. 815, 35 S. E. 671; Jacksonville, &c. Ry. Co. v. Peninsula, &c. Co. (Fla.), 9 South 661, 17 L. R. A. 33, 65, 49 Am. & Eng. R. R., Cas. 603; Ireland, &c. v. Cincinnati, W. & M. R. Co. (Mich.), 44 N. W. 426.
In Lesser Cotton Co., &c. v. St. L., &c. Ry. Co., 114 Fed. 136, 52 C. C. A. 95, after it was established that the only
That case is in point here, and numerous authorities are cited in the opinion of the court to sustain the conclusion reached.
Another case in jioint is Inman v. Elberton A. L. R. Co. (Ga.), 16 S. E. 958, 35 Am. St. Rep. 232, where the question was whether the firé in question was set out by one or the
As well remarked by counsel, in the argument of the case-here, plaintiff in error might have had other defective engines, its employees may have been guilty on other occasions of negligence of the most culpable character, yet if engine Ho. 169, and all of its attachments, so far as these were connected with-the prevention of fires, were, on the 13th of Hovember, 1901, such as the law-prescribes, and if the crew which was operating it upon that day at the time it passed Ashby station, were guilty"
“The party who affirms negligence must establish it by proof sufficient to satisfy reasonable and well-balanced minds. The evidence must show more than a probability of a negligent act. An inference cannot be drawn from a presumption, but must be founded upon some fact legally established. This court has repeatedly held that when liability depends upon carelessness or fault of a person, or his agents, the right of recovery depends upon the same being shown by competent evidence, and it is incumbent upon such a plaintiff to furnish evidence to show how and why the accident occurred — some fact or facts by which it can be determined by the jury, and not be left entirely to conjecture, guess or random judgment upon mere supposition, without a single known fact.” C. & O. Ry.. Co. v. Heath, ante p. 64, 48 S. E. 508, just decided by this court, and the authorities there cited. The evidence set out in Bills of Exceptions 1, 2 and 3 was illegal and should have been rejected.
“It is a well-settled rule of this court, that where illegal evidence has been admitted, the judgment must be reversed, as it cannot be said what effect the illegal evidence may have had oni the minds of the jury. So. Mut. As. Society v. Trear, 29 Gratt. 255, and authorities there cited.
At the trial, the testimony of Charles Puller was introduced, by defendant in error, over the objection of plaintiff in error,as to the speed of the train at a point a mile and a half or two-miles distant from the scene of the fire in question, and this is' assigned as error. We are of opinion that this evidence was wholly irrelevant and should have been rejected.
A witness, David Wedlock, having testified touching a certain fire near the right of way of plaintiff in error, was allowed to answer the question, whether he saw anything from which
We are of opinion that the question was not only leading and suggestive, but called merely for an opinion of the witness, which was improper, and should not have been permitted.
The next assignment of error is to the refusal of the Circuit Court to permit a witness to testify at the instance of the plaintiff in error, with reference to fires in the same vicinity, set out by duly equipped locomotives on the lines of other railway companies. This evidence was clearly irrelevant and was properly rejected.
The next assignment of error relates to the manner of the •examination of defendant in error as to what his stock of goods consisted of, and the contention is that the questions propounded were leading and improper.
The questions propounded to the witness were unmistakably leading or suggestive questions, but it cannot be said that plaintiff in error was prejudiced thereby, since it was left free to cross-examine the witness touching his examination in chief, and thus test his accuracy, veracity and credibility.
“'When and under what circumstances a leading question may be put is in the discretion of the trial court, and as a general rule is a matter which cannot be assigned as error. (1 'Greenleaf on Ev., sec. 435). But if it could be, no injury resulting to the opposing party in allowing the question to be asked, it would not be reversible error. Richmond, &c. Ry. Co. v. Rubin, 102 Va. 809, 47 S. E. 834.
The seventh assignment of error is to the ruling of the trial court, permitting the defendant in error to give to the jury an estimate of the total amount of purchases made by him since he had occupied the location at which he was at the time of the fire, and his annual sales from the same date.
This evidence may be of little value, but it was not error to
What was said with reference to the next preceding assignment of error applies to the eighth and ninth assignments. In the eighth, a witness was allowed to give the valuation of the stock of goods which the defendant in error had on hand on the day prior to the fire, based upon a cursory view, not made with any purpose of valuation, nor any expectation, such as would have caused him to give especial attention to the matter; and in the ninth, the matter complained of is the admission of the estimate of a witness of the value of the goods seen at the store two days before the fire. We do not think that the plaintiff in error could have been prejudiced by that evidence. It was of little value, and was doubtless so considered by the jury.
The eleventh, twelfth, thirteenth, fourteenth, and fifteenth assignments of error relate to the action of the trial court in giving certain instructions for defendant in error, the refusal of certain instructions asked for by the plaintiff in error, and the giving of the court’s own instructions in lieu of those refused.
We shall not attempt to review these several assignments of error, as we consider it sufficient to say that the instructions given covered the whole law of the case, stated in a plain and careful manner, so as to guard the rights of both parties.
The remaining assignment of error is to the refusal of the court to set aside the verdict of the jury, as contrary to the law and the evidence, and because the verdict is excessive. As the case has to go back for a new trial, on the grounds hereinbefore stated, we deem it inexpedient to discuss the evidence certified in the record.
Reversed.