Firemen's Ins. Co v. Seabd. Air Line Ry

• Decision Date: 04 April 1905
• Citation: 50 S.E. 452,138 N.C. 42
• Court: North Carolina Supreme Court
• Parties: FIREMEN'S INS. CO. et al. v. SEABOARD AIR LINE RY.

138 N.C. 42

50 S.E. 452

FIREMEN'S INS. CO. et al.

v.SEABOARD AIR LINE RY.

Supreme Court of North Carolina.

April 4, 1905.

RAILROADS—FIRES—EVIDENCE—TRAIN SHEETS-HEARSAY—INSTRUCTIONS.

1. Where, in an action against a railroad for burning cotton, it became material to show at what time defendant's wrecking train reached a certain station on the day in question, the dispatcher's train sheet for that day, kept in the usual course of business, on which the dispatcher testified that he marked the time of the arrival and departure of the train as telegraphed to him by the operator at the station, was not objectionable as hearsay.

2. In an action against a railroad for burning cotton, a request to charge that if the jury found that the fire originated from sparks from defendant's engine the presumption was that the sparks were negligently emitted, and that such presumption arose whether the fire started on the outside or inside of the building containing the cotton, was properly refused; the court having charged that if the fire originated from sparks from defendant's engine the presumption was that the sparks were negligently emitted, and that if defendant had failed to rebut such presumption they should find that the cotton was burned by reason of defendant's negligence.

Appeal from Superior Court, Wake County; Long, Judge.

Action by the Firemen's Insurance Company and others against the Seaboard Air Line Railway. From a judgment in favor of defendant, plaintiffs appeal. Affirmed.

Plaintiffs alleged that on the 19th day of October, 1902, certain cotton, upon which plaintiff companies had issued policies of insurance, was burned by the negligence of the defendant's agents and servants; that, by reason of the destruction of said cotton, plaintiffs were compelled to pay the value thereof; that the owners of said cotton transferred and assigned to the plaintiffs all rights of action which they had against the defendant company for the negligent burning thereof. Defendants denied the material' allegations in the complaint. The parties went to trial upon the following issues: "(1) Was the property of the Hamlet Ice Company insured by the plaintiffs, as alleged in the complaint, at the time it was burned? Answer. Yes. (2) Was the said property burned by the negligence of the defendant company, as alleged in the complaint? Answer. No." From a judgment upon the verdict the plaintiffs appealed.

Busbee & Busbee and Douglass & SImms, for appellants.

Day & Bell and T. B. Womack, for appellee.

CONNOR, J. (after stating the facts). In the trial of this cause It became material to show at what time the defendant's wrecking train No. 371 reached Hamlet, the station on defendant's road at which the cotton was burned. Defendant introduced one C. Lane, who testified that he was employed by the defendant road as train dispatcher on 19th October, 1902; that it was his duty to keep a record of the arrival and departure of all trains at all telegraph stations; that the record was made and kept on the train sheet; at the time trains arrived at and left stations, the operator at such stations notified the dispatcher, who immediately recorded on the sheet the time as it was reported to him; that such sheet constituted a record of the arrival and departure of all trains; that he governed the movements of trains by such record; that on the 19th of October, 1902, the official report was sent him, and that he immediately recorded thereon the time of the arrival of the extra train, which was the wrecking train at Hamlet of that date; and that he had the record before him. The defendant then offered the record in evidence, for the purpose of showing the time of the arrival of the wrecking train at Hamlet, which witness McDonald testified was taken charge of by shifting engine No. 371 on its arrival. (Objection.) The court ruled that the witness could refresh his recollection by an inspection of the record, enabling him to speak touching his own acts at the time with regard to the matter under inquiry, which at that time ruled out the declaration which any other agent of the company made to him at the time, by wire or otherwise. The witness stated that he could not state of his own personal knowledge the time at which the wrecking train arrived at Hamlet. The court admitted the record in evidence, showing the entries made by witness of statements made to him by wire from the agent of the defendant at Hamlet as to arrival and departure of said wrecking train, to which plaintiff duly excepted. Defendant also introduced one J. W. Hunt, who testified that he was employed by defendant company as conductor, and that as such he ran wrecking train on October 19, 1902, from Raleigh to Hamlet; that it arrived at Hamlet at 12:37. Witness is then shown a book which he identifies as a register, showing the time of arrival, which he says is kept at Hamlet; that it was his duty to register the arrival of the train, and that he did register it on that day. He identifies the entry in his own handwriting: "Extra train. Time arrival, 12:37 p. m." Signed by him, and also by engine-man. This last record was offered by defendant in corroboration of witness Hunt, and the court admitted it for that purpose, so instructing the jury.

It is contended by the plaintiffs that the "train sheets" are not admissible, because, while containing entries made by the train dispatcher in the usual course of business, he had no personal knowledge of the truth of the statements recorded; that he simply recorded information derived from the operator at Hamlet, a hundred miles or moredistant from Raleigh. This, they say, is but hearsay. The defendant, on the other hand, contends that the entry made by the train dispatcher, although based upon information derived from the operator, by reason of the circumstances under and the manner in which the information was communicated, is surrounded by all possible safeguards against error, uncertainty, or falsehood, and therefore comes within the exception to the general rule excluding hearsay evidence. The question is of first impression in this state. We have given it careful and anxious consideration, desiring to make no departure from the well-settled principles of the law of evidence or the decisions of this court, at the same time recognizing and keeping in view the duty of the court to make diligent effort to find in those.general principles such safe and reasonable adaptability that in the changing conditions of social, commercial, and industrial life there may be no wide divergence in the decisions from the standards by which men are guided and controlled in important practical affairs. The law of evidence, based upon certain more or less well-defined general rules evolved from experience, has been molded by judicial decision and legislative enactment into a system having for its end and purpose, and believed to be adapted to, the discovery of truth in judicial proceedings. Mr. Greenleaf says: "In the ordinary affairs of life we do not require demonstrative evidence, because it is not consistent with the nature of the subject, and to insist upon it would be unreasonable and absurd. The most that can be affirmed of such things is that there is no reasonable doubt concerning them." Prof. Thayer says, "The law of evidence is the creature of experience rather than logic." "The distinctions of the law are founded on experience, not on logic. It therefore does not make the dealings of men dependent upon mathematical certainty." Holmes, Com. Law, 15G. "It is no doubt true that to a very great extent the law of procedure, as j well as the primary law, is founded, not on the experience of isolated persons, but the general experience of men engaged in the business and vocation of life." 1 Elliott, § 3. The courts early adopted, and have at all times rigidly adhered to, the rule that witnesses, in testifying, must be confined to that which is within their personal knowledge, and that which is but hearsay must be excluded. 1 Greenleaf (16th Ed.) 98; 1 Elliott on Ev. 215. The wisdom of this general rule, and the reason upon which it is founded, are obvious, and require no vindication or discussion. The courts, however, soon found from experience that unless exceptions were made to the general rule it would be Impossible in many cases to establish the truth; that legal rights would be sacrificed, and wrongs be without remedy. Judge Elliott says: "As already stated, it' was conceived originally that witnesses should always be present, but this was found impracticable. In consequence, the general rule has become honeycombed with so-called 'exceptions.' The grounds of making these exceptions differ as do the different exceptions. The ground as to same is that the hearsay is rendered necessary by the difficulty of other proof; as to others, the ground is that, owing to the circumstances under which certain declarations were made, some guaranty of their reliability is furnished other than the mere fact of their having been made; that is, the circumstances add peculiar weight to this evidence, and dispense with the ordinary tests of credibility." 1 Elliott, 320. The general and well-recognized exceptions are stated in Elliott on Ev. 331; 1 Greenleaf, 114. Prof. Wigmore says that the reasons upon which the exceptions are based are "circumstantial guaranty of trustworthiness and necessity." 11 Wigmore, Ev. § 1420. The principle, with Its limitations, Is well stated by Jessell, M. R.. in Sugden v. St. Leonards, L. R. 1 Pro. Div. (1875-76) 154 (241). He says: "Now, I take it, the principle which underlies all these exceptions is the same. In the first place, the case must be one in which it is difficult to obtain other evidence, for no doubt the...