Burlington & Missouri River Railroad Co. v. Beebe
| Decision Date | 09 October 1883 |
| Citation | 16 N.W. 747,14 Neb. 463 |
| Parties | THE BURLINGTON & MISSOURI RIVER RAILROAD COMPANY IN NEBRASKA AND THE LINCOLN & NORTHWESTERN RAILROAD COMPANY, PLAINTIFFS IN ERROR, v. WINFIELD S. BEEBE, DEFENDANT IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court for Seward county. Tried below before GEORGE W. POST, J.
REVERSED AND REMANDED.
Marquett & Deweese and Norval Brothers, for plaintiffs in error.
D. C McKillip and Harwood & Ames, for defendant in error.
Q. You have talked with the neighbors about this fire?
A. No, all I know is from passing over it.
Q. From what you have seen and heard have you or not formed any opinion as to which should recover?
A. I have not.
Q. You have formed no opinion as to the right to recover anything?
A. No, sir. Only passing by and seeing where the fire had passed.
Q. Did you have any conversation with them as to how the fire had originated?
A. No, sir.
Q. Then you can have no opinion in this case unless you have heard and discussed the facts, could you?
A. No, sir. I know nothing about it, whether it originated from the railroad or some individual. I don't know anything about it only from local reports.
Q. Did you say in your direct examination that you thought the plaintiff ought to recover?
A. No, sir. Mr. Beebe made the remark that considerable damage was done.
Q. Do you know the particular location of this forty acres?
A. No, sir. Seven years ago he offered to sell it to me.
Q. You know about the character of the trees and the size of them, do you?
A. I have not been on this piece of timber for six years.
Q. Then you don't know the extent of the damage?
A. No, sir.
Q. You have not seen the district since the fire occurred?
A. No, sir. Only in passing, and that is nearly a mile; no, probably a half a mile from it.
Q. In this case suppose no evidence was offered but what you know of the matter now, would you be of the mind that the plaintiff should recover or not?
A. I know nothing about it, I don't know whether the plaintiff owns the timber or not.
Q. Supposing that the defendants (?) offer in evidence what you know of the matter now, and no further testimony is offered in the case, would you, as a juryman, say that the plaintiff ought to recover?
A. Well, yes, from a certain local idea of the fire, and seeing it at that distance.
Q. Without any further testimony you would say the plaintiff ought to recover?
A. Yes, sir.
RE-DIRECT EXAMINATION.
Q. Do you say that he ought to recover from the railroad company?
A. I don't know, I would have to have testimony as to who did the damage.
Q. Simply from seeing the timber land there you think somebody ought to pay for it?
A. Yes, sir.
Q. You don't mean to say you think that the railroad company ought to recover, or somebody else?
A. I don't know who should recover, any more than I know that the fire damaged the man's timber by running through it.
EXAMINATION BY THE COURT.
Q. Have you formed an opinion as to how much damage has been sustained?
A. No, sir. I have not.
Q. You don't know anything about the amount of damage done?
A. No, sir.
Q. Nor the cause of the damage?
A. No, sir.
Q. Nor how it was caused?
A. Only what I hear through the country.
Q. Would that influence you in forming your verdict?
A. No, sir.
It will thus be seen that the examination of the juror was thorough and exhaustive. The object on the part of defendant's counsel evidently being to make the fact of the juror having passed along the road, and seen where a fire had run among the young and growing timber, disqualify him to sit upon the jury in the case. When it is borne in mind that the average juryman is not expected to pass a successful examination in logic or casuistry on short notice, it must be apparent that the exhaustive examination of this one signally failed to show him possessed of partiality as between the parties, preconceived opinion as to the merits of the case, or of temper such as would disable him to find a fair and impartial verdict upon the testimony in the case.
The third point made by the plaintiff in error is upon the admission of certain testimony introduced by the plaintiff in the court below for the purpose of proving the measure of damage to the timber land of the plaintiff by the fire set out by the engine of the defendant, and it urges the point that by the admission of such testimony the witnesses for the plaintiff were allowed to usurp the province of the jury in fixing the amount of plaintiff's damages.
The following quotations from the bill of exceptions show upon what foundation this point is based. The plaintiff, being on the stand as a witness in his own behalf and not having been examined as to his occupation or means of knowledge of the value of lands or other property, is asked the following questions on the part of the plaintiff:
Q. Do you know the value of this land just before the timber was burned, before this fire went through it?
A. Yes, sir. I know the value of it.
Q. What was it before the fire went through it?
A. I would not have taken less than four hundred dollars for what it went over.
On motion of defendant this answer was stricken out as irresponsive to the question and incompetent.
Q. The question is, what was the value of this forty acres of timber, not what you would have taken for it, but what was it worth?
A. It was worth what I said.
Q. I mean the forty acres, all of it?
A. It was worth eight hundred dollars.
Q. What was it worth after the fire went through it?
Defendant objects as being incompetent; witness has not shown himself competent to answer, and calls for a conclusion. Overruled, and defendant excepts.
A. It was worth--that's a pretty hard question to answer. Did you consider the burned timber worth anything?
Q. That is for you to say. What was the diminished value, what was it worth after the fire went through it?
A. Worth five hundred dollars or six hundred dollars.
Q. What was the diminished value of the land; what was the damage done by that fire?
Defendant objects as incompetent. Overruled, and defendant excepts.
A. Four hundred dollars damage to me--that is to the land.
* * * *
Q. What was the value of the land and the timber on it as it stood before the fire went through it, the forty acres?
A. Eight hundred dollars.
Q. What was the value of the land as it was after the fire went through, with the timber burned?
Defendant objects as not laying a proper basis for the estimation of damages. Overruled, and exception.
A. About six hundred dollars, five hundred, or six hundred dollars. I consider that the damage to the land and the sale would be five hundred dollars.
Q. On what basis do you estimate the damage?
A. I looked at it in this way: I consider the timber eight hundred dollars before it was burned, and after it was burned it was not worth more than half as much. The burned timber if I could have used it or sold it, it would have been worth a little something to me, but it stood there perfectly worthless, some of it stands there now, some for post timber and some cannot be used for that. That is why I make the distinction between what the timber was worth and what I could really get out of it, and putting it to use.
The defendant moved to strike out all of this witness's testimony relating to his damages, because it is an improper and false basis on which the estimation is made. Overruled, and exception.
Mr Healy, a witness for the plaintiff, after stating that he was acquainted with the value of timber land in...
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