Bush v. Taylor

• Decision Date: 02 December 1918
• Docket Number: 14
• Citation: 207 S.W. 226,136 Ark. 554
• Parties: BUSH v. TAYLOR
• Court: Arkansas Supreme Court

207 S.W. 226

136 Ark. 554

BUSH v. TAYLOR

No. 14

Supreme Court of Arkansas

December 2, 1918

Appeal from Clay Circuit Court, Eastern District; R. H. Dudley Judge; affirmed.

Judgment affirmed.

Troy Pace, for appellant.

1. If the fire was set out by a Cotton Belt train, that company alone would be responsible. 126 Ark. 236. The evidence is largely conjectural and very unsatisfactory, there being many inconsistencies and contradictions. There is no legal evidence that the fire was set out by a train operated by the receiver and the instructions were error.

2. The train sheets or records of the train dispatcher and the testimony of the assistant superintendent were improperly admitted in evidence. 113 Ark. 417; 115 Id. 339; Jones on Ev. (2 Ed.), § 573; 2 Id. (1914 Ed.) 319; 17 Cyc. 368; 85 U.S. 516-541; 66 F. 522. They were not properly authenticated by the oath of the party making the entries. 57 Ark. 402, 415; 60 Id. 333, 342; 65 Id. 316, 320; 94 Id. 183, 190; 111 Id. 593-6; 115 Id. 339, 350. The best evidence must be produced. 91 S.W. 691; 3 L.R.A. (N. S.) 1190. See also, 113 Ark. 417, 421, 426.

L Hunter and Holifield & Harrison, for appellee.

1. This is the second appeal in this case. 130 Ark. 522. The evidence supports the verdict and there is no error in the instructions. 97 Ark. 56; 59 Id. 325; 92 Id. 572.

2. There was no error in admitting the evidence of Hammond, the assistant superintendent, and the train sheets showing movement of trains. 2 Jones on Ev., §§ 236, 237, 255-6, 270a, 272. The admissions of agents within the scope of their authority are admissible against the principal. 6 Ark. 138, 140; 37 Id. 52. Admissions of a party to the record are competent. 9 Id. 392; 37 Id 593; 60 Id. 35.

3. The rule as to the suppletory oath authenticating the record has no application here because there is no reason requiring it. 31 Ark. 694; 93 Id. 214.

4. Train sheets are admissible in evidence. 1 White, Personal Injuries on Railroads, § 102; 158 Mass. 450; 33 N.E. 583; 3 L.R.A. (N. S.) 1190. They are always admissible when offered by the adverse party, even though not identified by the person who made the entries. 23 Am. & E. Ann. Cas. 366; 30 N.Y. 497; 20 N.H. 227.

OPINION

WOOD, J.

This is an action against appellants by the appellee. In December, 1915, B. F. Bush, as receiver of the St. Louis, Iron Mountain & Southern Railway Company, was operating trains over the railroad owned by the St. Louis Southwestern Railway Company, "commonly called the Cotton Belt." Appellee alleged that in operating such trains the agents and servants of appellant, Bush, communicated fire from one of the locomotives to appellee's saw mill, shingle mill and planing mill, adjoining the railroad, and thereby totally destroyed appellee's mill plant together with a large quantity of lumber, shingles and saw logs to his damage in the sum of $ 9,446, for which he prayed judgment.

The appellant, the St. Louis Southwestern Railway Company, in its answer admitted the operation of trains over its line of road by Bush as receiver of the St. Louis, Iron Mountain & Southern Railway Company, but denied that the property of the appellee was destroyed by fire as alleged in the complaint. The appellant, B. F. Bush, likewise admitted that he, as receiver of the St. Louis, Iron Mountain & Southern Railway Company, was operating freight trains over the track of the St. Louis Southwestern Railway Company, but denied specifically the other allegations of the complaint. There was a jury trial and judgment rendered in favor of the appellee, from which is this appeal.

Over the objection of appellant, J. R. Hammonds testified that he was the assistant superintendent of the Cotton Belt Railroad; that he kept records in his office showing the passage of trains through the different stations along the road. He had the record showing passage of trains through Rector on December 1, 1915. He did not keep records himself. They were kept by the train dispatcher. They are the records that were taken out of the file of his office, where is filed a daily record of the movements of all trains. These records show that Cotton Belt engine No. 253 arrived there on December 1, 1915, at 6:15 p. m. and Missouri Pacific No. 32 arrived at 7:20 and departed at 7:26 p. m. These were all the trains that went through Rector between 6:00 and 9:00 p. m. A freight train went south about 8:05 p. m. without stopping. The record of that train slipped the witness when he was checking the others. The record was little blurred and witness finally testified that it was the Iron Mountain instead of the Missouri Pacific train. Witness had been assistant superintendent for only two months and was not in the employ of the Cotton Belt on December 1, 1915. He assisted the chief dispatcher in getting the records out of the files in the office at Illmo, Missouri, and had never seen the records but that time, and knew nothing personally about their correctness. All railroads kept records similar to those adduced. It was not possible to operate any great number of trains without train sheets like those in evidence. Where there are three or four trains, such a record had to be kept.

The above testimony, taken in connection with other testimony, tended to sustain the verdict and to prove that appellee's property was destroyed by fire caused by sparks from an engine of the St. Louis, Iron Mountain & Southern Railway Company at that time being operated by B. F. Bush as receiver. But, in the absence of the above testimony, the evidence was not sufficient. The appellant, B. F. Bush, therefore contends that the court erred in not excluding the above testimony, and this is the only issue for our determination.

Appellant relies upon the case of St. Louis, I. M. & S. Ry. Co. v. Gibson, 113 Ark. 417, 168 S.W. 1129, to sustain his contention. That case was a suit against the railroad company for personal injuries and the company sought to prove the time when the train passed the station at Hope by the testimony of the station agent at Fulton, to the effect that the operator at Hope told the witness that the train cleared the block at Hope at 5:50 p. m. The court held that the testimony was hearsay and incompetent, saying: "It was just as necessary for the operator at Hope to keep a record of the arrival and departure of trains from his block as it was for the operator at Fulton to keep such a record. The record kept by the operator at Hope was just as accessible and just as easy to obtain as that kept by the operator at Fulton. Hope was situated in the county where the case was tried, and there is no reason why the operator at Hope was not examined and used as a witness to prove the time the train left the block at Hope going north. He could have testified of his own personal knowledge as to that fact and could have used the record kept by him to have refreshed his memory in the event it was necessary to do so. The declaration made by him to the operator at Fulton as to the time the train in question left the block at Hope was made after Gibson had been killed, and so was made at a time when there might have been occasion for him to have made a false declaration."

It will be observed that the opinion was bottomed upon the fact that the testimony of the operator at Hope and his record kept at that station of the time when trains passed there, was primary and therefore the best evidence of what occurred there, rather than the testimony of a witness at another station of a record he had kept from information received through the declarations of operator at Hope as to what had occurred at the latter station. The opinion further shows that the evidence offered by the company in its own behalf was not only hearsay but it was in the nature of self-serving declarations.

Another case relied on by the appellant is that of St. Louis Southwestern Ry. Co. v. Mitchell, 115 Ark. 339 171 S.W. 895. In that case the appellant requested the trial court to grant a prayer to the effect that the record of the movements of its trains must be accepted as any other written evidence made at the time of the transaction; and unless the jury had reason to believe that such record had been changed or tampered with, they must find that it gave the correct movements of the trains. The court refused this prayer and in commenting upon that ruling we said: "There is nothing about these train records to import verity. Under some circumstances their recital might furnish evidence of a very satisfactory character, but the court can not say as a matter of law that these records were correctly kept. * * *...