Ireland v. Cincinnati, W. & M.R. Co.

• Decision Date: 17 January 1890
• Citation: 79 Mich. 163,44 N.W. 426
• Parties: IRELAND et al. v. CINCINNATI, W. & M. R. CO.
• Court: Michigan Supreme Court

44 N.W. 426

79 Mich. 163

IRELAND et al. v. CINCINNATI, W. & M. R. CO.

Supreme Court of Michigan

January 17, 1890

Appeal from circuit court, Berrien county; RUSSELL R. PEALER, Judge.

Action by Silas Ireland and others, copartners under the firm name of Benton Harbor Chilled Plow Company, against the Cincinnati, Wabash & Michigan Railroad Company, for damages caused by a fire alleged to have been set by one of defendant's engines. There was a verdict for defendant and plaintiffs appeal.

C. B. Potter, (Geo. S. Clapp of counsel,) for appellants.

Lawrence C. Fyfe, (Dallas Boudeman and C. E. Cowgill, of counsel,) for appellee.

CHAMPLIN C.J.

Plaintiffs were the owners of a plow factory situated in Benton Harbor and on the morning of December 14, 1883, it was wholly consumed by fire. The defendant was operating a railroad, and its track passed within about 50 feet of the factory. The plaintiffs allege that the locomotive engine of defendant was out of repair, and not in good order and condition, and was improperly managed by defendant's servants, and the sparks arising and coming from the smoke-stack, through the careless, negligent, improper, and unskillful management of the engine by defendant's servants, were driven, blown, and lodged in and upon the buildings of plaintiffs, and said buildings took fire therefrom, and were, with their contents, burned and destroyed. The cause was submitted to the jury, under instructions by the court as to the law, and they returned a verdict for the defendant. Several errors are assigned upon the latitude permitted by the court in the cross-examination of plaintiffs' witnesses. It is not necessary to repeat the errors assigned.

The rule is well established that a witness may be cross-examined upon all points material to the issue, whether the party has called them out upon direct examination or not; and there was no error in permitting the facts to be elicited upon the cross-examination of plaintiffs' witnesses.

The court refused to permit the plaintiffs to show that an engine of defendant set fire at another time and place than the one mentioned in the pleadings. It was not claimed that such fire was set by the engine which caused the fire in question. It had already been proved that the engine which passed by the plaintiffs' factory on the morning of the fire was designated as "Engine No. 1." Where the particular engine is known and designated, it is not competent to show generally that the defendant's engines have caused fire at other times and places. To show that the particular engine was defective in construction, it may be shown that such engine has previously caused fire to be set by escaping sparks at other times and places; and this privilege was not denied to the plaintiffs.

Defendant was permitted to show that within a short distance from plaintiffs' factory there was a stationary boiler with smoke-stack; that the fire used to make steam was fed by pine slabs; that the smoke-stack had no spark-arresters upon it and that it was in use that morning, at the time of the fire. And, to show that sparks were emitted from this smoke-stack which were alive, a witness was...