Dunning v. Maine Cent. R. Co.

• Decision Date: 20 December 1897
• Citation: 91 Me. 87,39 A. 352
• Parties: DUNNING v. MAINE CENT. R. CO.
• Court: Maine Supreme Court

39 A. 352

91 Me. 87

DUNNING

v. MAINE CENT. R. CO.

Supreme Judicial Court of Maine.

Dec. 20, 1897.

(Official.)

Exceptions from supreme judicial court, Penobscot county.

Action by John G. Dunning against the Maine Central Railroad Company. Verdict for plaintiff. Motion for new trial, and exceptions. Motion and exceptions overruled.

This was an action on the case to recover for the loss of the ice houses, and property therein, formerly belonging to the Katahdin Ice Company, and situate in Bangor, between the track of the defendant company and the Penobscot river, at High Head. The case was tried to a Jury in the court below, sitting in Penobscot county; and it was agreed that the case should be submitted to the jury upon the single question of the defendant's liability, with the understanding that, if there was a verdict for the plaintiff, it was to be heard by Mr. Justice Wiswell in damages.

The first count in the declaration is as follows:

"In a plea of the case, for that the said plaintiff, at Bangor aforesaid, on the 27th day of May, 1896, owned and was possessed of certain property, to wit, the ice houses formerly belonging to Katahdin Ice Company, and lying and being in Bangor aforesaid, between the track of said Maine Central Railroad Company and the Penobscot river, at High Head, so-called, and the boiler house connected therewith, all being of the value of twenty thousand dollars; and also of certain machinery, tools, and appliances, consisting of engine, boiler, elevator, shafting, belts, runs, rigging, and ice tools, all being of the value of three thousand dollars; and also of a large quantity of ice stored in said houses, to wit, twenty thousand tons of ice, of great value, to wit, of the value of twelve thousand dollars; all of which said buildings and property were then and there of the total value of thirty-five thousand dollars, and were then and there lawfully placed and stored on land of said plaintiff, and adjoining the railroad of said Maine Central Railroad Company, and were then and there, and for a long time before had been, situated and deposited there, and were such property as said Maine Central Railroad Company had an insurable interest in, and could have procured insurance thereon; and then and there said Maine Central Railroad Company, so chartered by the laws of said state, did own and operate a railroad adjoining said premises and property of said plaintiff, and did then and there run and use, by its servants and agents, a locomotive engine, and cars attached thereto; and on said day, at said Bangor, while said locomotive engine was being run and used and operated on said railroad by said corporation, said property of said plaintiff was injured and destroyed by fire communicated by said locomotive engine, so being run and used by said corporation.

"And said plaintiff avers that his said property above named, and so situated as above, was totally destroyed at said time and place by said fire, and that the sole cause of said fire, and such injury and destruction of his property, was the fire communicated by the locomotive engine so being used and run by said corporation."

The jury returned a verdict in favor of the plaintiff, and the defendant filed a general motion for a new trial, and also took exceptions.

From the defendant's bill of exceptions it appears that the plaintiff's counsel, in his opening of the case, had claimed that the fire which caused the damage which is sued for in this case had been communicated by the locomotive of the defendant company which drew what was known as the "Dexter and Dover Train," that left Bangor on the afternoon of May 27, 1896, at 4:30 p. m.

Frank William Robinson, whose deposition was introduced by the plaintiff, testified that on the afternoon of May 27th he left his house, which was near the ice house that was destroyed, about 5 p. m., local time, or 4:30, standard time, in the afternoon of that day, and, going up the track towards the station in Bangor, he met a locomotive drawing the Dover and Dexter train, and that at about the time he got up to the city he heard the alarm of fire caused by the fire in question.

William H. Quine, a witness for the plaintiff, had testified that he saw an engine drawing the Dexter and Dover train go by 10 or 15 minutes before this fire in the ice house was discovered.

Margaret S. McOormick, a witness for the plaintiff, had testified that she saw the Dexter and Dover train go by between half past 4 and 25 minutes of 5, and that the fire in the ice house was discovered at 5 minutes after 5.

Philip P. McCormick had testified that it was 15 or 20 minutes, more or less, after the Dexter train went out, that the fire in the ice house was first discovered.

It was claimed throughout the case by the plaintiff that this fire was caused by the particular locomotive which drew the Dexter and Dover train, leaving Bangor on that particular day at 4:30 o'clock in the afternoon.

Plaintiff's counsel offered testimony tending to show that, at various times shortly before and after the fire in the ice house constituting the cause of action in this case, other fires were seen on, or in the immediate vicinity of, the track, and that other engines of the defendant corporation, by emitting sparks, cinders, or coals, spread fire.

This testimony was not at first admitted, but after the introduction of the testimony hereinbefore stated, as to the identity of the engine which it was claimed, on the part of the plaintiff, set this particular fire, the presiding justice, against the objection and subject to the exception of the counsel for the defendant, ruled, for the purposes of this trial, that for the purpose of showing the capacity of locomotives used by the defendant company to cause fires, and for the purpose of showing the possibility that this fire was caused as claimed by the plaintiff, he would admit testimony tending to show that at various times about the time that this fire was caused, and in that vicinity, engines of the defendant corporation, by emitting sparks, cinders, or coals, spread fire, and that fires were seen on, or in the immediate vicinity of, the track, shortly after the passage of locomotives of defendant company.

Defendant's counsel thereupon gave notice that the engine drawing this train would be fully identified, and that it appeared already that the plaintiff had identified that engine as drawing that particular train, and that he, in behalf of the defendant, admitted the possibility of engines setting fires; but the presiding justice admitted the testimony, saying, further, that he thought the evidence should be of such a character as to show that these fires were caused by locomotives of the defendant company,—not merely that there were other fires at other times in the immediate vicinity of the track, but that sparks were emitted, or that coals were emitted, or shortly after the passage of other locomotives other fires were seen upon the track or along the track.

To this ruling, and the admission of such testimony, defendant took exceptions.

John Lee, a witness called by the plaintiff, was asked the following question: "Have you, at or about the time of this fire on the 27th day of May last, seen any fires about in the vicinity of the ice houses, and contiguous to the track, immediately or soon after the passage of any locomotives of the Maine Central Railroad?"

This question, objected to by counsel for the defendant, was admitted, subject to his objection and exception, whereupon the witness answered:

"Yes, sir; I have seen fires;" and went on to state that he saw one that very afternoon that the fire in the ice house took place, and that it was in a pile of sleepers at the southerly end of High Head cut.

This same witness, upon cross-examination, testified that he did not know how this fire in the sleepers caught; he did not know how long it had been burning when he saw it; and that he did not know anything about it, except that he saw it. He subsequently said that it could not have been there a great while when he saw it, as he judged from the headway it had. This witness further testified that he left the stable on that day at 1 o'clock, local time, or half past 12, standard; that it took him about 15 minutes to go from the stable to the ice houses; that immediately upon his arrival they went to work loading up the teams; that they loaded up four teams that afternoon; and that it ordinarily took to load all the teams some two hours, more or less. He said that he saw this fire in the sleepers after they commenced to load, and that he could not say whether it was while they were loading the second team, or the first team, when he saw it, or the third or the fourth team.

It was admitted that a train left the Maine Central station at 1:40, standard, in the afternoon of that day. At the close of this witness' testimony and after said cross-examination, counsel for the defendant asked that this testimony relating to this fire in the sleepers be stricken out, whereupon the court ruled that it might stand, subject to objection.

To the admission of the aforesaid testimony, and the allowing it to stand, defendant excepted.

Thomas E. Smullen, a witness called by the plaintiff, was asked, "Did you ever notice cinders along the track?" and answered, "Yes, sir," and was further asked, "Now, within a few days or weeks of the fire at the ice house, have you seen other fires in the vicinity of the ice house, near the railroad track, and shortly after the passage of the locomotive within a short time before?" to which he answered, "Yes, sir;" and, the defendant's counsel objecting, the court said, "All of this is subject to the general objection."

To the admission of this testimony, defendant excepted.

Charles M. Stewart, a witness called by the plaintiff, subject to the same general objection on the part of the defendant was allowed to testify in relation to other fires, and...