4 S.D. 476 | S.D. | 1893
This was an action to recover damages sustained by plaintiff for the loss of hay and grass destroyed and machinery damaged by a fife alleged to have been caused by the negligence of the defendant. The case was tried by a jury, and verdict and judgment rendered in favor of the plaintiff, from which judgment, and order denying a motion for a new trial, the defendant appeals.
It was alleged in the complaint that the defendant negligently permitted dry grass and other combustible material to accumulate upon its right of way; that the defendant negligently caused the same to be set on fire by a passing engine; and that the said fire was permitted by the negligence of the defendant to extend to the premises of the plaintiff, causing the damage complained of. The answer was a general denial, ex
On the trial the plaintiff was called as a witness on his own behalf, and examined very fully as to the nature, character, and value of the hay and grass burned and the machinery damaged, by his own counsel. On cross-examination the appellant’s counsel examined him upon the same subjects, and asked him as to certain conversations between himself and one Haffey, a section foreman on the defendant’s road on which the fire was alleged to have originated, and as to statements made by him to Haffey as to the amount and value of the hay and grass destroyed and machinery injured, the value of which plaintiff was seeking to recover. The witness testified as to the conversation between himself and Haffey as to the amount and value of the hay and grass, machinery, etc., but denied making certain statements to Haffey in reference thereto, called to his attention by the counsel for appellant. Upon his re-examination by counsel for the respondent he was asked and answered the following questions: “Q. Mr. Keith asked you in regard to a conversation that took place between you and Mr. Haffey? A. Yes, sir. Q. You have not stated the whole of that conversation, have yon? A No, sir; I guess not. Q. Just detail the whole conversation. A. Well, he came there to my house, and wanted me to along with him, and went past the stack there; and he wanted to know how much I thought was there, and I gave him my idea. Q. How much did you tell him there was in the stack? A. I told him I thought eleven ton. And we went on to the railroad track, to see and satisfy ourselves where the fire started. I -was not sure where the fire started, for the fire had got a big headway. Q. You went to the railroad track for what purpose? A. Well, he hadn’t been down there, He was
The counsel for respondent further contends that, as the counsel for the appellant had brought out for the first time the conversation between the witness and Haffey, he made him his own witness. We cannot agree with the counsel in this contention. The witness had been fully examined by the counsel for respondent as to the quantity and value of the hay, grass, etc., destroyed, and it was perfectly proper for appel • lant’s counsel to interrogate the witness in regard to statements made upon these matters to Haffey, either for the purpose of inducing him to qualify his statements made in his examination in chief, or to lay the foundation for discrediting his evidence by showing tha,t he had made prior contradictory statements. The learned counsel for the respondent seems to overlook the fact that upon a ctoss examination great latitude should be permitted. And, as said by the supreme court of California: “Undoubtedly, the cross examination cannot go beyond that matter [the subject-matter of the examination in chief;] but it ought to be allowed a very free range within it. In order to do this the witness may be sifted as to every fact touching the matters as to which he testifies, so that his temper, leanings, relations to the parties and the cause, his intelligence, the accuracy of his memory, his disposition to teU the truth, Ms means of knowledge, his general and particular acquaintance with the subject matter, may be fully tested.” In discussing the rule laid down by Mr. Greenleaf in his work on evidence, (Section 447) that “a party who has not opened Ms own case will not be allowed to introduce it to the jury by cross examining the witnesses of the adverse party, though, after opening it, he may cross examine them for that purpose,.” the court said: “We do not understand the doctrine of Greenleaf to go further than this: that if the defendant sets up a defense not necessarily involved in the denial of the plaintiff’s case, but consisting of
Counsel for respondent further contends that counsel for appellant sat by and permitted the re-examination of the witness, without objection, as to the whole conversation. We think there is no force in this contention, as, up to the last question, the answer to which the objection is taken, the re examination is in line with the cross examination. That question as we have seen, did not call for any conversation. Had the question called for the conversation in detail, and the counsel for appellant sat by and made no objection, of course he could not afterwards have moved the court to strike it out. A party cannot sit by and permit an incompetent or improper question to be asked without objection, and, when he finds the answer is against him, then move to strike out the answer. The case of Caumont v. Morgan, (N. Y. App.) 9 N. E. 861, admirably illustrates this doctrine. The question was. “Tell what he [Morgan] said.” ‘’‘To that question,” says the court/ “no objection was interposed, and he had completed his answer and narration as to what had occurred at the interview of which he was speaking. Then came the objection. If, as would seem, it had reference to testimony already given, it came too late.” The court there states the rule applicable to such a case as follows; “It is entirely clear that a party who has sat by during
The authority to make statements binding upon his principal was so fully considered, discussed, and the authorities cited in the cases of La Rue v. Elevator Co., (S. D.) 54 N. W. 806, Bank v. Gilman (S. D.) 52 N. W. 869, and the same case on rehearing, 56 N. W. 892, (decided by this court) — that we do not deem it necessary to discuss it in this case. In the first case cited this couyt laid down the rule governing the statements made by agents as follows: “(1) The statements, representations or admissions of an agent, to be admissible in evidence to bind his principal, must have been made at the time of doing the act he is authorized to do, and must have been concerning the act he was doing, either while actually engaged in the transaction or so soon thereafter as to be in reality a part of the transaction, and constitute a part of the res gestee. ” The same rule applies to this case. The statement of Haffey, as detailed by the plaintiff, was made after the fire complained of, and was not made by him while in the performance of any duty imposed upon him by the company, or which he was authorized to perform by the company. It was purely heresay, and clearly incompetent.
It is contended by the counsel for the respondent that, if the court erred in denying the motion to strike out the evidence complained of, it wTas an'error without prejudice, and there was sufficient evidence to justify the jury in finding for the plaintiff, independent of the statements alleged to have been made by Haffey. But in this contention we cannot agree with counsel. It is true that there was the evidence of one other witness, who was more than a mile away, with the smoke of the engine blowing towards him, which tended to prove that the fire originated on the appellant’s right of way; but we cannot, under these circumstances, say that the jury was not influenced in its verdict upon that question by the statement of Haffey. Being, as he was, an employe of the defendant,
There were numerous other errors assigned, and many of them discussed by counsel, but, as these questions may not arise again in a new trial, it will not be necessary to consider them. The judgment of the court below is reversed, and a new trial granted;