Barker v. Collins

• Decision Date: 11 April 1906
• Citation: 63 A. 686,22 Del. 49
• Court: Delaware Superior Court
• Parties: HENRY L. BARKER v. GEORGE W. COLLINS

63 A. 686

22 Del. 49

HENRY L. BARKER v. GEORGE W. COLLINS

Superior Court of Delaware, Sussex County

April 11, 1906

Superior Court, Sussex County, April Term, 1906.

ACTION ON THE CASE (No. 42, October Term, 1904), to recover the value of 350 cords of pine wood alleged to have been burned and destroyed on June 21, 1905, on and along the road leading from Marvel's Tan Yard to Stockley Station, in Dagsboro Hundred, through the negligence of the defendant in using an improper and insufficient spark arrester on his traction engine, whereby, while passing along said road, sparks were emitted from the smoke stack of said engine, setting fire to and destroying said cord wood.

At the trial, one of plaintiff's witnesses testified that he saw the engine at the time it was passing along the road by the place where the plaintiff's wood was stored and that the engine was then throwing out fire from the smoke stack so that he could see it, it being a bright sunshiny day, and that if it had been night it would have been raining fire that he saw the said sparks of fire drop near the wood and begin to burn and spread so that in a short time the entire wood was consumed. Another witness was produced on behalf of the plaintiff and asked the following questions: "Did you see the traction engine of Mr. George W. Collins, the defendant, on or about the 21st day of June, 1905? A. I don't know that I saw her that day but I saw her pass through my place, which was about a half mile from the place where the fire occurred, sometime along in the afternoon on the day before the fire took place in Mr. Barker's wood."

Q. What did you see the engine doing there that day?

(Objected to by counsel for defendant as irrelevant. Counsel for plaintiff stated that they were prepared to follow the evidence up and show that the day before the fire occurred sparks were emitted from the engine in the same way; that if there had been a proper spark arrester, the fire would not have taken place).

Verdict for plaintiff for $ 193.42.

R. C. White and C. W. Cullen for plaintiff.

Andrew J. Lynch for defendant.

LORE C. J., and SPRUANCE and BOYCE, J. J., sitting.

OPINION

LORE, C. J.

:--The Court have very often ruled in damage suits that in order to admit testimony as to the condition of a machine, for instance, a few days prior to the happening of the injury resulting from some alleged defect therein, the party must be prepared to follow it up and show that the machine was in the same condition as at the time of the injuries. It might be so close to the time, as to make it admissible. But in this case we think that it is too remote, and therefore sustain the objection.

LORE, C. J., charging the jury:

Gentlemen of the jury:--This is an action brought by Henry L. Barker, the plaintiff, against George W. Collins, the defendant, to recover damages for the destruction of 350 cords of pine wood which he alleges belonged to him and was on land along the road leading from Marvel's Tan Yard to Stockley Station in Dagsboro Hundred in this county.

He claims that it was destroyed by reason...