Alabama & Vicksburg Railway Company v. Fried

Decision Date15 December 1902
Citation81 Miss. 314,33 So. 74
CourtMississippi Supreme Court

October 1902

FROM the circuit court of Warren county HON. GEORGE ANDERSON Judge.

Fried appellee, was plaintiff, and the railway company, appellant defendant in the court below. From a judgment in plaintiff's favor defendant appealed to the supreme court. The facts are stated in the opinion of the court.

Judgment affirmed.

Mc Willie & Thompson, for appellant.

The books of the Press Association were not books of account for goods sold and delivered, nor for services rendered, and are, therefore, not within the exception to the common law rule as announced by this court in Moody v. Roberts, 41 Miss. 74, 76, and Bookout v. Shannon, 59 Miss. 383. They are, however, the books of a third person, and the entries therein are res inter alios acta, not made for the purpose of charging the defendant railway company, nor in reference to any transaction with which that defendant was connected or in any way concerned.

We refer the court to the learned note accompanying the case of State Bank v. Brown, 53 L. R. A., 513, where the rule recognized by the above cited Mississippi decisions is shown to be supported by a great number of authorities.

We find no respectable authority for the admission in evidence of the books of a third person who is disconnected with the transaction save where an entry against interest appears on the books of a deceased person, and this exception rests upon a wholly different principle from that upon which the general rule is based. The books of a merchant are admitted because the debtor is presumed to be able to contradict the entries which are made against him for goods sold and delivered, and the same reason justifies the admission of the books in which charges are entered for services rendered. In both cases, the debtor, by dealing with the other party on credit, in a measure, vouches for the truthfulness of the charges made against him, and is in a position to know whether they are correct. At all events when the charges are entered in the course of a transaction between them, they become a part of the res gestau, and are, therefore, admissible.

The entries made in the books offered in this case were not made for the purpose of charging the defendant railway company, which was wholly disconnected with the transaction between the plaintiffs and the Cotton Compress Association out of which the entries arose, and in no position to controvert the list made up by the plaintiff and the insurance company from the compress books, and entirely satisfactory to both of them, doubtless as a measure of the liability to be saddled upon the railway company. It appears from the testimony of Hornthall, one of the plaintiff's witnesses, that the books offered were not books of original entry, and that the entries therein were made after the fire. Of course, if the books were not admissible, memoranda made from them ought not to have been received in evidence.

The plaintiff had no direct evidence that the fire originated from sparks emitted by defendant's locomotives, and in order to take advantage of the statutory presumption of negligence as to injuries resulting from the running of trains had to prove that fact by circumstances. He, therefore, introduced much evidence in regard to the emission of sparks by defendant's engines in general, but none that we recall relating to the day of the fire except that of one witness whose testimony had reference only to the emission of sparks from the engine drawing the eastbound passenger train ten or fifteen minutes before the fire, while the engine was coming up the steep grade of the incline about half a mile distant from the scene of the fire. The plaintiff's evidence shows throughout that as the grade increased the exhaust of steam and attendant emission of sparks became greater, and while there is some grade along Pearl street, where the fire occurred, the development of power necessary to overcome it, would not involve anything like the emission of sparks that takes place at the incline which has more than twice as steep a grade. The defendant therefore moved to exclude the testimony of the witness who had testified to the emission of sparks by engines at the incline, and the court, having erroneously overruled the motion, afterwards emphasized its view of the law by granting the plaintiffs an instruction which removed from the consideration of the jury the different conditions existing at the very different points represented by the incline and Pearl street near its intersection with Speed street.

The instruction allowed the jury full rein to give the utmost effect to the evidence of the emission of sparks by engines engaged in very different works at a different place where a great many more sparks would necessarily be emitted, if the jury had been allowed to consider the emission of sparks at the incline in reference to a fire at Bolton or Clinton, the impropriety of the ruling would hardly be more obvious.

Evidence of the emission of sparks by other engines on other occasions must be confined to times and points not remote from the fire in question, and even then it is not admissible until plaintiffs have given evidence tending to show that the fire could have had no other origin. Penn. Ry. Co. v. Ross-man, 3 Ohio C. C., 111 (7 Ohio Dec., 119).

When one of two identified engines must have caused the fire, if in fact it originated from the emission of sparks by an engine, evidence of the emission of sparks by other engines at other times is inadmissible. Inman v. Elberton Air Line Ry. Co., 90 Ga. 663.

In view of that feature of our statute law creating a presumption of negligence on the part of railroad companies in all cases where injuries result from the running of their trains, the stricter rule as to the admission of evidence should be followed for it would certainly be hard to rest this presumption upon evidence which in no way tends to prove the fact upon which the presumption arises. We cite upon the subject the following:

California.--Flynn v. Railroad Co., 40 Cal. 14; Henry v. Southern Pac. Ry. Co., 59 Cal. 156; 13 Am. Ry. Rep., 168.

Florida.--Jacksonville etc., Ry. Co. v. Peninsular Land, etc., Co., 27 Fla., 1; 49 Am. & Eng. Ry. Cases, 603.

Georgia.--Inman v. Elberton Air Line Ry. Co., 90 Ga. 663; 35 Am. St. Rep., 232; 16 S.E. 958.

Illinois.--Hoopeston First Nat. Bank v. Lake Erie Co., 174 Ill. 36; 50 N.E. 1023.

Indian Territory.--Missouri K. & T. Ry. Co. v. Wilder, 53 S.W. 490.

Michigan.--Ireland v. Cincinnati etc., Ry. Co., 79 Mich. 163; 44 N.W. 426.

Minnesota.--Nelson v. Chicago, etc., Ry. Co., 35 Minn, 170; 28 N.W. 215.

New Hampshire.--Hazeltine v. Concord Ry. Co., 64 N.H. 545; 15 A. 143; 35 Am. & Eng. Ry. Cases, 236.

New York.--Rood v. R. R. Co., 18 Barb. (N. Y.), 80; Sheldon v. R. R. Co., 14 N.Y. 218.

Pennsylvania.--Frankford & B. Turnpike Co. v. Philadelphia, etc., Ry. Co., 54 Pa. 345; R. R. Co. v. Yeaser, 8 Pa. 366; Glaser v. Lewis, 17 Phila. (Pa.), 345; 42 Leg. Int. (Pa.), 141; Erie Ry. Co. v. Decker, 78 Pa. 293; Penn. Ry. Co. v. Shannahan, 79 Pa. 405; Henderson v. Philadelphia, etc., Ry. Co., 144 Pa. 461; 22 A. 851, 27 Am. St. Rep., 652.

Wisconsin.--Gibbons v. Wisconsin Valley Ry. Co., 58 Wis. 335; 17 N.W. 132; 13 Am. & Eng. Ry. Cases, 469.

England.--Vaughn v. R. R. Co., 5 Hurl. & N., 679; R. R. Co. v. Brand., L. R., 4 H. L., 171, 201-2; Higgs v. Maynard, 12 Jur. (N. S.), 705; Welfare v. R. R. Co., L. R., 42 B., 693; Wright v. R. R. Co., L. R. 89 Exch., 137; 42 Law. Exch., 89. In an action to recover damages for a loss sustained by fire set by a passing locomotive which is identified, evidence of other fires caused by different locomotives before and after the fire complained of is not admissible. Hoopeston First Nat. Bank v. Lake Erie & W. Ry. Co., 174 Ill. 36; 50 N.E. 1023; Affg., 65 App., 21.

In an action against a railroad for damages caused by an engine emitting sparks, the engine being identified, evidence of other engines of defendant emitting sparks on other occasions is incompetent; defendant's liability depending on its negligence in operating the particular engine, and not in operating engines generally. Missouri, K. & T. Ry. Co. v. Wilder (Ind. Ter.), 53 S.W. 490.

If the particular engine which is supposed to have caused the fire is shown, no evidence respecting the condition of any other should be received. Glaser v. Lewis, 17 Phila. (Pa.), 345.

Where the statute does not impose absolute liability upon a railway company for fires set by its locomotive, but, as in this state, merely changes the burden of proof, the defense of contributory negligence is not defeated (3 Elliott on Railroads, sec. 1235, pp. 1922, 1923), and the acts constituting such negligence divide themselves into two classes; first, those things done or omitted to be done before the fire; and second, those after the fire. Ib., p. 1923. When a person places a building or other property in a position exposing it to hazards, from railway fires, he is bound to take notice of the increased risk and exercise a higher degree of care than if the property were placed in an unexposed position. 3 Elliott on Railroads, sec. 1238, p. 1925, et seq.; Kansas City, etc., Ry. Co. v. Owne, 25 Kan. 419; Chicago, etc., Ry. Co. v. Pennell, 94 Ill. 448; Briant v. Detroit, etc., Ry. Co., 104 Mich. 307; Post v. Buffalo, etc., Ry. Co., 108 Pa. 585; 13 Am. & Eng. Ency. Law (2d ed.), p. 495.

It was shown by the plaintiff's own evidence, that a part, and doubtless a very large part, of the damages in this case were caused by the misdirected, if not reckless, course of the fire department, for in the language of one of plaintiff's...

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