Davidson v. St. Paul, M. & M. RY Co.

Decision Date23 July 1885
Citation34 Minn. 51,24 N.W. 324
PartiesDAVIDSON v ST. PAUL, M. & M. RY CO.
CourtMinnesota Supreme Court

OPINION TEXT STARTS HERE

Appeal from an order of the district court, Kandiyohi county, denying motion for new trial.

Williams, Davidson & Goodenow and John W. Arctander, for appellant, William F. Davidson.

R. B. Galusha and J. Kling, for respondent, St. Paul, M. & M. Ry. Co.

BERRY, J.

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 time of the fire. The alleged deficiency in this respect was subsequently supplied by the witness Stevens. Berkey v. Judd, 22 Minn. 287;Deakin v. Chicago, M. & St. P. Ry. Co. 27 Minn. 303;S. C. 7 N. W. REP. 268;Keith v. Briggs, 32 Minn, 185;S. C. 20 N. W. Rep. 91.

5. Several witnesses for the defendant were permitted to testify as to the size and effect of sparks issuing from a coal-burning engine, the time during which they would remain alive, and the distance at which fire could and could not be communicated by them. Some of these witnesses were or had been engineers, some conductors, some master mechanics or assistant master mechanics in railroad shops, (several of them had occupied two of these places,) and they had been employed on and about locomotive engines, and had had to do with them in varying circumstances for lengths of time running from 10 to 25 years. One of the witnesses was a brakeman and yard-master of three years' service. Each of them, from his situation and the nature of his occupation, would appear to have had special advantages, opportunities, and means for observing the nature, operation, and effect of sparks issuing from coal burning engines in the respects mentioned, and would appear to have testified from his own observations so made....

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    • United States
    • North Dakota Supreme Court
    • May 23, 1913
    ... ... 39, 43 L.R.A ... 487, 42 A. 255; Caven v. Troy, 32 A.D. 154, 52 ... N.Y.S. 804; 29 Cyc. 597-600, 623, 624, 629; Jenkins v ... St. Paul City R. Co. 105 Minn. 504, 20 L.R.A. (N.S.) ... 401, 117 N.W. 928; Philadelphia & R. R. Co. v ... Schertle, 97 Pa. 454; Douglass v. Mitchell, ... 610; ... Woodward v. Southern R. Co. 90 S.C. 262, 73 S.E. 79; ... State v. Manchester & L. R. Co. 52 N.H. 528, 548; ... Davidson v. St. Paul, M. & M. R. Co. 34 Minn. 51, 24 ... N.W. 324; Swadley v. Missouri P. R. Co. 118 Mo. 268, ... 40 Am. St. Rep. 366, 24 S.W. 140; [25 ... ...
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