110 Va. 622 | Va. | 1910
delivered the opinion of the court.
Objection is taken to the action of the circuit court in permitting J. I. Harvey, an engineer who had run on the Southern railway, to testify that the device for arresting sparks employed by the Southern railway was, in his opinion, preferable to that used by the defendant company; that it was easier to operate a train with the device used by the defendant, but that the device used by the Southern threw less fire.
The record shows that this witness was not introduced by the plaintiffs to speak as to the relative merits of different spark arresters, and was not asked upon his examination in chief to give any evidence on that subject. The plaintiff in error, on cross-examination, made the witness his own on the subject of the best form of spark arrester, and the question objected to, which was asked by the plaintiffs, was responsive to the evidence which the defendant had drawn out from its own witness. The defendant cannot now complain of evidence that it alone is responsible for. Moreover, if the defendant could have suffered any prejudice on this account, the harm was avoided, at its instance, by instruction No. 2, which fully guards the rights of the defendant in this respect by telling the jury “that the law recognizes the fact that the skillful do not agree in the matter of instrumentalities and allows every one using mechanical devices the freedom of action and judgment which must be an incident to such differences in judgment. The law does not permit a jury to condemn a device because some other person using a similar device prefers a different pattern.”
It is further insisted that the court erred in allowing the witness, O. N. Abbott, to state that, after the use of a certain
• It is further objected that it was error to require the train dispatcher to give evidence of the trains passing the plaintiffs’ house other than the freight which the plaintiff, Thomas, had .identified as causing the fire.
The record shows that there were four trains that passed the plaintiffs’ home between the hours of twelve and one o’clock, the time being opportune for causing the fire. Thomas saw and mentioned one of these trains, but he did not identify the train he saw as the one that caused the fire. The records of the defendant company showed what trains passed the house and the time when each passed. When the train dispatcher was on the .stand with this record before him, it was entirely competent for the plaintiffs to make him their witness for the purpose of showing what trains had passed the house at an opportune time for .starting the fire. This was all that was done, and the objection was properly overruled.
It is further contended that it was error to permit the introduction of a time-table for the year 1908, in order to prove the speed allowed in 1903 when the fire occurred.
If the rules regulating the speed of trains in 1903 were in ■existence, they were in the possession of the defendant company .and not accessible to the plaintiffs. The time-table of 1908 was not introduced to show the schedule speed of trains in 1903, but for the purpose of showing what the defendant regarded as a reasonable rate of speed in 1908, thereby tending to show what was a reasonable rate of speed in 1903. With the exception of an additional station, there was no evidence to show that any changed conditions in- the roadbed or the traffic of the defendant had taken place since 1903 that would alter or affect the speed
It is further urged that the circuit court erred in refusing to give the first instruction asked for by the defendant, which was as follows: “The court instructs the jury that in considering the value of the house they must take in view its location, and if they believe from the evidence that the value of the house upon the farm was not such a sum as would replace it, the jury shall only award such a sum as the place has suffered by reason of its destruction.”
This instruction is not clear and is misleading. The rule for measuring damages in this class of cases is, that the measure of recovery is the value of the property destroyed. Norfolk & W. R. Co. v. Bohannon, 85 Va. 293, 7 S. E. 236.
In the case cited the suit was to recover damages for the destruction by fire of an orchard. In passing upon an instruction in that case this court said: “The ihstruction given stated the rule in cases of this kind as well, perhaps, as it can be done, when it said that the measure of recovery is the value of the property destroyed.”
In 33 Cyc., pp. 1391, 1392, citing numerous cases, the rule is stated as follows: “Where buildings are injured or destroyed it is ordinarily held that they are capable of a separate valuation, and that the measure of damages is the value of the property at the time of its destruction.”
The instruction did not state the rule correctly and was properly refused.
The record shows that the plaintiffs put their claim for the destruction of their property into the hands of their attorneys soon after the fire. The causes of the delay in bringing and prosecuting this suit are not material in this connection. The suit was brought within the statutory period. The insurance company has intervened in the suit, by petition, asking that it may be repaid its loss by the fire out of any damages the plaintiffs may recover, and the plaintiffs have agreed of record that the company shall be so paid. The time of its intervention does not appear, and cannot affect the right of the plaintiffs, through whom the company claims, to recover the value of the property destroyed. The instruction sought to introduce a wholly irrelevant issue that could only have confused and misled the jury. It was, therefore, properly refused.
Instruction Nos. 3 and 4, asked for by the defendant and refused are predicated upon the assumption that the plaintiffs had identified the local freight as the particular train that had caused the fire, and they announce the doctrine that where the negligent act may have arisen from one of two sources, for one of which the defendant was responsible and for the other it was not, the plaintiffs cannot recover.
The evidence shows that four trains of the defendant passed the scene of the fire within less than one hour. The fire may have originated from any one of these engines. As already stated, the evidence does not sustain the contention that the plain
"Where the particular locomotive which caused the fire is not identified the plaintiffs may show defects in the spark-arresting apparatus of any one of the defendant’s engines which may have caused the fire; and the defendant may show that all of its engines passing on the day of the fire were properly equipped. Enc. of Ev., Vol. 10, p. 545 ; N. & W. Ry. Co. v. Perrow, 101 Va. 345, 43 S. E. 614.
The case of C. & O. Ry. Co. v. Heath, 103 Va. 67, 48 S. E. 508, cited by defendant, has no bearing upon the facts of this case. There a mill near the railroad, operated by a steam engine, was burned at night. The evidence did not show whether the fire arose from the engine which ran the mill or from a passing engine of the railway company. Under those circumstances it was held that no liability was fastened upon the company.
Objection is taken to instruction No. 2 given by the court. The chief objection urged to this instruction is that in laying down the law touching the burden of proof the following language is employed: “ . . . and the burden is on the defendant to prove that it had availed itself of all the best mechanical contrivances and inventions in known practical use.”
This court has stated the law in the language objected to, in numerous cases involving the destruction of property by fire from railroad engines. Brighthope Ry. Co. v. Rogers, 76 Va. 443;
The third instruction given by the court is made the subject of objection. This instruction tells the jury that when the doing of any particular act is attended with unusual hazards, unusual care must be exercised, but when the performance of the act is attended with only ordinary hazards, a less degree of care is required; that in proportion as the hazards increase there should be a corresponding increase in the care exercised; that in an unusually dry season when all inflammable material is very dry and liable to be set on fire from the smallest spark, and the wind is blowing from an engine toward wooden buildings or combustible material, greater care and caution are required than when these conditions do not exist.
These well settled principles were applicable to the fact of the case, and the objection to the instruction is without merit. N. & W. Ry. Co. v. Fritz, supra.
Finally it is insisted that the court erred in refusing to set the verdict aside, and in giving judgment thereon for the plaintiffs.
It is only necessary to say, with respect to this assignment of error, that a careful examination of the record shows that the verdict of the jury is fully sustained by the evidence, and that no error was committed by the court which would justify a reversal of the judgment; and, therefore, it is affirmed.
Affirmed.