Bradford v. Boston & M.R.R.

• Decision Date: 30 October 1916
• Citation: 113 N.E. 1042,225 Mass. 129
• Parties: BRADFORD v. BOSTON & M. R. R.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

225 Mass. 129

113 N.E. 1042

BRADFORD

v.BOSTON & M. R. R.

Supreme Judicial Court of Massachusetts, Franklin.

Oct. 30, 1916.

Exceptions from Superior Court, Franklin County.

Action by Gilbert M. Bradford against the Boston & Maine Railroad. Verdict for defendant, motion for new trial overruled, and plaintiff brings exceptions. Exceptions overruled.

Homer Sherman, of Charlemont, and Harry E. Ward, of Greenfield, for plaintiff.

Dana Malone and Chas. N. Stoddard, both of Greenfield, for defendant.

CARROLL, J.

On the 18th of June, 1912, a dwelling house and other property known as the Mann property, were damaged by fire. It was claimed that a spark from one of the defendant's locomotives set fire to a mill of the Massachusetts Talc Company and thence spread to the premises in question. In answer to a specific inquiry submitted to them, the jury found:

‘The fire that damaged the Mann property’ was not ‘communicated to that property by a locomotive engine of the Boston & Maine Railroad.’

The title was in dispute, one Fred R. Shaw and the plaintiff each claiming to be the owner. Shaw's action for damages was pending and by order of the judge the cases were tried together.

In 1909 the property was owned by Gilbert H. Mann. Shaw claimed title under a deed from the administrator of Dexter B. Cook, who was a purchaser at an execution sale. The administrator's deed to Shaw was executed July 22, 1913, subsequently to the fire. Mann died before the fire and by his will gave the whole estate to the plaintiff. The plaintiff also held a second mortgage thereon, having become the purchaser at the foreclosure sale after the fire. His first exception is to the order of the court directing that the cases be tried together. This was a matter within the discretion of the judge and there was no error of law in the course taken by him. Burke v. Hodge, 211 Mass. 156, 97 N. E. 920, Ann. Cas. 1913B. 381;Lumiansky v. Tessier, 213 Mass. 182, 188, 99 N. E. 1051, Ann. Cas. 1913E, 1049.

The plaintiff was a witness and was asked the value of the buildings destroyed by fire. This evidence was excluded. Both cases were then on trial. Not knowing what the evidence of title would disclose, the judge stated that as it was a question who owned the property he would at present exclude the evidence. The matter was not again called to his attention. This exclusion was not a definite and final ruling entitling the plaintiff to an exception; if it later appeared that there was evidence of the plaintiff's title for the jury to pass on, the attention of the judge should have been called to the excluded testimony. Magnan v. Fuller, 222 Mass. 530, 534, 111 N. E. 399. Apart from this, the finding of the jury that the fire was not caused by the defendant, made the question, of the extent of the damages and the value of the property, an immaterial one. Cotter v. Nathan & Hurst Co., 222 Mass. 433, 110 N. E. 1037.

The plaintiff claiming title as devisee under the will of Gilbert H. Mann, the defendant was permitted to show that Mann's estate had been represented insolvent and commissioners appointed, together with the amount of the debts according to the representation of insolvency and according to the return of the commissioners. Fred Shaw, the other plaintiff, offered in evidence a deed from the deputy sheriff to Cook, the plaintiff excepting thereto, Shaw having derived his title from the administrator of Cook. All these questions of title are now of no importance because of the finding of the jury, and we need not consider them. The third, fourth, fifth and sixth exceptions are therefore overruled.

A witness was asked, ‘Whether or not you have seen fires set from other sparks from engines.’ The question was excluded. The same witness was permitted to testify to her knowledge of fires in this particular locality caused by sparks from locomotives. This exception must be overruled. See McGinn v. Platt, 177 Mass. 125, 58 N. E. 175.

The evidence showed that the fire started in the Massachusetts Talc Mill which stood near the railroad track. Frederick K. Daggett was the treasurer and general manager of the Talc Company. He was a witness for the plaintiff and testified that shortly before noon on the day of the fire, he bought some cigars and matches and went upstairs to the second floor where the fire started. It was in evidence that a large amount of inflammable material was stored on this floor. At this time the machinery was running, none of the employés being present. Adney White, a schoolboy, testified that on the day of the fire he walked through the mill on his way home from school and saw Daggett on the stairway looking up to the second story; that some time after this, when the Talc Company's case was on trial, he went to the office of Daggett's lawyer with Daggett, who told him ‘not to say that at the time he saw him in the mill, on the day of the fire, he had an oil can in his hand, because he did not.’ Daggett was then asked on cross-examination, the plaintiff excepting, whether the plant of the Talc Company, standing in the same location, was burned the year previous. He also testified that he had a deed of trust of the property; the deed was admitted in evidence. We think this evidence was admissible, according to the discretion of the presiding judge. The defendant contended it was not responsible for the fire; that it started in the mill of the Talc Company. As a step toward showing its origin and cause the evidence of the former fire was admissible. The deed was admissible as explaining the motive and intent of Daggett. See Everson v. Casualty Co. of America, 208 Mass. 214, 94 N. E. 459;Noyes v. Boston & Maine R. R., 213 Mass. 9, 99 N. E. 457.

While the question of the financial condition of the Talc Company and the admission of its records, which was confined to the vote authorizing the deed of trust to Daggett, as well as the evidence of what occurred at the meeting when this vote was passed, were somewhat remote, we cannot...