Davidson v. St. Paul, Minneapolis & Manitoba Ry. Co.

Decision Date23 July 1885
Citation34 Minn. 51
CourtMinnesota Supreme Court

Appeal by plaintiff from an order of the district court for Kandiyohi county, Brown, J., presiding, refusing a new trial after verdict for defendant. The action was brought to recover damages for the destruction of plaintiff's grain elevators, with their contents, by fire alleged to have been negligently suffered by defendant to escape from one of its locomotives. The defendant denied that the fire was caused by the engine, and alleged contributory negligence on the part of the plaintiff in placing and leaving shavings and other combustibles in, under, and around the buildings. The nature of the evidence introduced and of the exceptions taken is stated in the opinion. The "train-register" mentioned in the third paragraph of the opinion was introduced by defendant under the following circumstances: One Bloomfield, defendant's station agent at Willmar, was the defendant's first witness, and testified (among other things) that but two trains had arrived at or departed from Willmar on the day of the fire and before it broke out; that these were passenger trains with coal-burning engines, and that no switch-engine was employed at that time. On cross-examination he stated that he kept a train-register, showing the arrival of trains, and that it showed the arrival of no trains on that day prior to the fire except those as to which he had testified on his direct examination. The plaintiff's counsel also questioned him as to whether the register did not show the arrival of a certain additional train to those mentioned by the witness, and as to whether it did not fail to mention one of the trains to the arrival of which he had testified. In answer the witness read an entry from the book. On re-examining the witness, the defendant's counsel offered in evidence that portion of the book covering the day in question. It appeared that the entries were made by the conductors on the arrival of their respective trains, and that the book was the same used by the telegraph operator in reporting arrivals to the train dispatcher. The evidence was admitted, against plaintiff's objection and exception.

J. W. Arctander and Williams & Goodenow, for appellant.

R. B. Galusha, J. Kling, and Bigelow, Flandrau & Squires, for respondent.


In this action the plaintiff seeks to recover damages for the destruction of his elevator and its contents at Willmar, by fire alleged to have escaped from defendant's locomotive engine on account of its careless and negligent construction and management.

1. The fire occurred on the eighth day of December, 1881. The plaintiff offered to show by a witness that "from the first of March to the first of May, 1881, he noticed that every engine that started out from the yard threw sparks profusely, and further to show that during the summer and fall, up to the time of the burning, the witness noticed on several occasions railroad trains being made up in the yard at Willmar, and starting out, and that on these several occasions he noticed them throwing sparks profusely." The court required the evidence to be confined to what occurred at or about the time of the fire, and the witness was accordingly permitted to state what he had observed at the Willmar yard, as respects sparks, during the fall and winter of 1881, though under this permission he appears to have been able to testify only as to what took place during two minutes previous to the fire. If, upon the question involved in this case, — viz., whether, upon the eighth day of December, the plaintiff's elevator was set on fire by sparks escaping from defendant's locomotive through defendant's negligence, — this kind of testimony was admissible at all, (a matter not altogether free from doubt,) we think the trial court was entirely right in confining plaintiff to a time at or about the date mentioned. Obviously there must be some limit as to time. Plaintiff claims that the testimony was admissible for the purpose of showing a "negligent habit" on defendant's part, and if this is a proper ground for its admission, it is because the negligent habit prevailed at or about the time of the fire. The claim that the testimony offered should have been received to contradict defendant's theory that visible sparks cannot escape from a coal-burning engine, is clearly baseless when it is considered that at the time of the offer no evidence had been introduced to support the theory mentioned.

2. The testimony offered to show frequent fires of wood-piles along the line of defendant's road was at any rate entirely irrelevant, in the absence of any evidence adduced or proposed to show that such fires were set by defendant's locomotives.

3. If the plaintiff did not desire to have the train-register in the case, he should have let it alone. After having himself made use of it, and had the witness examine and testify from it, the defendant was entitled to put the book in evidence, that it might speak for itself, and show just what its contents were as to the matters inquired about by plaintiff.

4. It is not important that, at the time when the motion was made to strike out the testimony as to the shavings, introduced by defendant, it had not appeared that they were there at the...

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