112 Wash. 314 | Wash. | 1920
The Sound Timber Company brought this action against the Danaher Lumber Company to recover damages for destruction of property hy a forest fire alleged to have been started by sparks permitted to escape, hy the negligence of defendant, from its logging locomotive on August 24,1917. It is alleged
The parties generally were engaged in logging operations. Respondent’s camps and logging railroad where the fire originated were on the west side of the Sauk river; while appellant’s operations were on the east side of the river. The camps of both parties had been closed down for more than a month on account of labor troubles. Appellant’s camp continued closed. Respondent started operations again on August 24, the day of the fire. It appears that one of respondent’s railroad engines was equipped for, and was usually fired by, the use of oil, and that it was not provided with a spark arrester, such as is generally used in engines burning coal or wood. Appellant introduced testimony tending to show that, before noon of the day of the fire, this engine was being operated while there were in its fire box live wood coals, and that the sparks were blown off, causing a fire, which, during the afternoon, spread to appellant’s works. Respondent, on the contrary, offered testimony tending to show that it did not operate its engines as charged, and that the fire which did the damage complained of was not started by its engine. At any rate, a few minutes before noon of August 24, fire was discovered near the logging railroad over which respondent’s locomotive had passed. This fire got beyond control and, during the afternoon and night, burned over a large area of respondent’s lands in different directions- from the starting point, and finally burned generally in a southwesterly direction.
Permitting Johnston to thus testify is appellant’s first assignment of error. The whole purpose and effect of the testimony of Bauguess was to show that the fire on appellant’s land had been conveyed by live sparks and cinders carried by the wind from the fire on respondent’s land; and the testimony objected to was proper, we think, as tending by reasonable inference to contradict his present version of it. It is an application of the rule that statements made by a witness tending to contradict his present account of the same affair are admissible as affecting the weight and value of his testimony. French v. Seattle Traction Co., 26 Wash. 264, 66 Pac. 404. Respondent’s claim that time and place were not fixed in the question asked Bauguess is unavailing, for the answer of the witness
“That the memory of the witness shall be so refreshed by the necessary inquiries as to enable him to explain, if he can and desires to do so. "Whether this has been done is for the court to determine before the impeaching evidence is admitted.” Wharton’s Law of Evidence (3d od.), vol. 1, § 555; The Charles Morgan, 115 U. S. 69.
Clearly, after the witness had repeated that he hardly knew Johnston, and that he had never had a talk with him, there was no error in allowing the testimony of Johnston.
It appears that the camps of each the appellant and respondent contained many members of the Industrial Workers of the World, and that, about a month before the fire, they brought on a strike and caused all of the camps to be closed; that, after the strike commenced, about forty members of the I. W. W. camped at a place about one and one-half miles south of the logging works of appellant and respondent, and that two or three of them also camped near the place where the .fire originally started east of the river. Over appellant’s objection, the court received testimony that these strikers were daily seen going through the various camps of the respective parties hereto; that they picketed those camps and refused to allow any person to go to work therein; that some of their leaders had stated that the logging camps should not start without their consent, and that, if there was any effort to start them, the lines would fall to pieces by reason of a
The appellant had introduced testimony tending to show that the fire was started by the negligent operation of one of respondent’s engines. To meet this charge respondent had a right to introduce testimony which reasonably tended to show that the fire had been started in other ways. The real question being tried was the origin of the fire, and any testimony which gave light to that subject was competent. It was, of course, perfectly competent to show that persons not connected with the respondent were camping in the neighborhood and were constantly passing through respondent’s works and that the fire may have started through their negligence. The appellant, however, particularly objects to the receipt’ of testimony tending to show the threats and general conduct of the members of the I. W. W. It may be conceded that evidence of mere isolated threats is generally not admissible, for the reason that it has no tendency to establish the innocence of the defendant; but where, as here, there was proof that the fire occurred on the very day the respondent started its operations in opposition to the wishes of the I. W. W., and that many members of that organization were in the immediate neighborhood and could easily have been present and were in position to carry out their threats, we think the testimony concerning the threats was admissible. It is not necessary that every fact should bear directly on the issue, but it becomes admissible if it tends to prove the issue or constitutes a link in the chain of proof. The rule only excludes evidence
The chief question must usually be whether there is sufficient testimony to connect reasonably the person making the threat with the act charged to have been done. The general rule is clear. The difficulty is in applying the rule to the testimony. In this regard every case must stand on its own bottom. If the testimony objected to is to be believed, we have certain men threatening to destroy property if the logging camps are started without their consent; the starting of respondent’s camps against their wishes; the occurrence of the fire on the very day the camps start; the presence of the men making the threats at the time of the fire;
It cannot he said, as a matter of law, that this testi7 mony wholly failed to raise any reasonable inference that the men making the threats were connected with the consummation thereof.
Assignments of error-Nos. 3, 4 and 14 are disposed of by what has been said under assignment No. 2.
Assignment No. 5 relates to an effort on the part of appellant to present testimony on rebuttal tending to show that at least one of the I. W. W. had, before the fire, stated that they desired to avoid fires and that the members of that organization were friendly with the appellant. The court permitted testimony tending to show the friendliness, but refused that offered for the purpose of showing that they desired to avoid fires. We think there was no error against appellant in this ruling. To prove "that the I. W. W. expressed friendliness to the appellant and desired to co-operate in avoiding fires did not tend to dispute respondent’s testimony concerning threats and the ability to carry them out.
Assignment No. 15 affects the same general question
Assignment No. 6 refers to objections made to a remark of opposite counsel in tbe course of examining a witness. "While tbe remark may not have been altogether proper, it was harmless and could not have prejudiced tbe jury. Besides, tbe court in its general instructions cautioned tbe jury against any remarks made by tbe attorneys which were not borne out by tbe testimony.
Assignments Nos. 7, 8 and 9 relate to tbe rejection of testimony offered by appellant as to tbe direction of tbe smoke from tbe place where tbe fire originated. Tbe distances and situations of tbe witnesses were such that any testimony tbey may*have given would have been not only cumulative, but of such little probative value that there was no prejudicial error in rejecting it.
One of appellant’s witnesses, and probably one of respondent’s witnesses, testified that tbe fire started
Assignment No. 11 refers to tbe refusal of tbe court to allow certain questions on tbe cross-examination of respondent’s witness Taylor. He was superintendenb of respondent’s camp, and in chief bad testified that be was at tbe original fire shortly after it started on respondent’s land, and that tbe wind and smoke were going in a southerly direction and at no time in tbe afternoon blew across to tbe east side of tbe river. On cross-examination, having admitted that, during tbe progress of tbe fire, be telephoned to tbe foreman of a camp of respondent, situated some distance east and on tbe other side of tbe river, be was asked if, during that conversation, be did not ask tbe foreman whether there was fire on tbe east side, and if tbe foreman did not ask tbe witness what should be done about getting out some of the property at that camp, and if tbe witness did not reply: “I can’t tell you anything to do now except to save yourself.” Objections to tbe questions were sustained as not being proper cross-examination. Tbe ruling was right. All tbe witness bad
Assignment No. 12 presents what we consider a too critical complaint against a portion of one of the instructions to the jury. We think the instruction correct and in no way misleading.
Assignment No. 13 draws in question the concluding language of one of the written instructions, whereby, in effect, the jury were told to disregard statements the court may have made during the trial as to the law applicable to the issues, and that the written instructions contained all the law the jury were at liberty to consider in arriving at their verdict. We think the language complained of not at all erroneous, taken in connection with all of the written instructions, and certainly not objectionable for the reason suggested by appellant, to the effect that the jury might become confused and feel at liberty to consider testimony that had been stricken out; for, in another portion of the writ
The 16th assignment relates to the denial of appellant's motion for a new trial, and requires no distinctive consideration.
We do not find any reversible error. The judgment is affirmed.
Holcomb, G. J., Mackintosh, Fullerton, Main, Mount, Tolman, and Parker, JJ., concur.