Gleason v. San Pedro, L.A. & S.L.R. Co.

• Decision Date: 04 April 1917
• Docket Number: 2971
• Citation: 164 P. 484,49 Utah 405
• Parties: GLEASON v. SAN PEDRO, L. A. & S. L. R. Co
• Court: Utah Supreme Court

164 P. 484

49 Utah 405

GLEASON v. SAN PEDRO, L. A. & S. L. R. Co

No. 2971

Supreme Court of Utah

April 4, 1917

Appeal from District Court, Third District; Hon. Geo. G. Armstrong Judge.

Action by T. H. Gleason against the San Pedro, Los Angeles & Salt Lake Railroad Company.

Judgment for plaintiff.

Defendant appeals.

REVERSED and remanded.

Dana T Smith for appellant.

Hancock & Barnes for respondent.

FRICK C. J. CORFMAN, J., concurring in part and dissenting in part. McCARTY, J. dissenting.

OPINION

FRICK, C. J.

The plaintiff, after alleging the necessary matters of inducement and that he was the owner of certain property and its value, further alleged:

"That on said date, to wit, about the 12th day of September, 1913, the defendants operated cars and engines propelled by steam over, along, and across its said railroad track near the belongings and property of the plaintiff aforesaid, and that while the said defendants were operating engines and cars over and along said tracks as aforesaid, the said defendants negligently and carelessly permitted and allowed its said engines to blow sparks of fire and coals of fire over and upon this plaintiff's property as aforesaid, and that said sparks of fire and coals as aforesaid being so negligently, carelessly, and wrongfully thrown over and upon the property of this plaintiff, did light near and upon the stacks of hay and straw of the plaintiff as aforesaid, and that by reason thereof, and by reason of the carelessness and negligence of the defendant in so operating its said engines and cars and in throwing said coals of fire upon plaintiff's property, the said hay and straw was set on fire, and all of said property was consumed and burned up and completely destroyed, to his great damage in the sum of $ 1,250. That the defendant was negligent and careless toward this plaintiff in operating said cars and engines along this plaintiff's property, and in permitting and allowing said coals of fire to escape from, and be blown from said engines over and upon the property of this plaintiff, and in negligently and carelessly failing to equip said engines with proper equipment and devices to control the said fire and coals and in failing to operate and conduct its said engines and operate the same so that said coals of fire would not light upon and ignite the property of this plaintiff, and in wrongfully permitting said coals of fire to light upon the property of the plaintiff as aforesaid."

The defendant demurred to the complaint upon two grounds: (1) That the facts stated were not sufficient, etc.; and (2) that the complaint was uncertain and ambiguous, in that it could not be ascertained therefrom in what manner defendant was negligent, etc. The court overruled the demurrer, and the defendant now assigns the ruling as error.

While the complaint is not a model in stating the particulars in which it was claimed the defendant was negligent in causing the fire, yet, in actions of this kind, the plaintiff, in the very nature of things, may not know the precise defect in the engine which it is alleged caused the sparks or fire to escape therefrom, for the reason that the same is entirely under the control and management of the defendant. In view of that fact great precision cannot be required from the plaintiff in stating the precise defects in the engine or in the management thereof by the engineer, either or both of which may have caused the fire. Moreover, the record shows that the defendant was in no way prejudiced by the general statements in the complaint. Apparently it had no more difficulty in presenting its defense than if the complaint had been made entirely specific in every particular. The complaint clearly stated a cause of action. It is clear, therefore, that no prejudicial error resulted from the court's ruling in that regard.

It is insisted that the court erred in admitting the testimony of the plaintiff, over defendant's objection, respecting the value of a certain shed which was destroyed by the fire in question. The record shows that counsel, in order to prove the value of the shed, propounded the following question to the plaintiff: "And what was the cost of the construction of the shed, if you recall?" Defendant's counsel objected to the question upon various grounds, among which, that "the proper foundation had not been laid," that the question did not call for the proper measure of damages and was not proper as "tending to show the value of the property at the time of the fire." The court sustained the objection, and plaintiff's counsel then proved by the witness that the shed was entirely destroyed, and then propounded the following question: "Now are you prepared to state what it would cost to replace that shed?" The witness answered "Yes, sir." Counsel asked, "What?" Defendant's counsel objected again for the same reasons before stated. The court overruled the objection, and defendant's counsel excepted to the ruling. The witness answered: "I valued it at $ 300." It was made to appear, however, that the shed had been constructed many years before the fire; that it was constructed by digging cedar posts into the ground, to which the boards constituting the walls were nailed, and that it had a straw-covered roof. We have been quite liberal in allowing evidence of value where, as here, property has been destroyed which had no market value at the time of its destruction. In such cases evidence of the actual value of the property destroyed is always permissible, and the actual value may be ascertained as pointed out in Smith v. Mine & S. S. Co., 32 Utah 21, 88 P. 683. The plaintiff was either unwilling or unable to shed any light upon the cost of constructing the shed. Of course the original cost of construction, standing alone, would not be proper evidence of its present value, and, if offered for that purpose, would be incompetent. Chicago, etc., Ry. Co. v. Davis, 78 Ill.App. 58. Yet, as a means of arriving at the actual value, if properly guarded by the court as pointed out in Smith v. Mine & S. S. Co., supra, such evidence is admissible. But neither this nor any other court, so far as we know, has ever gone to the length of permitting a plaintiff to prove the value of property by merely showing what he assumed it to be worth or what it was worth to him. To admit such evidence constitutes error. Central Branch U. P. Ry. Co. v. Hotham, 22 Kan. 41; Railway Co. v. Jones, 59 Ark. 105, 26 S.W. 595. The district court, therefore, erred in permitting the witness to answer the question.

Nor can it aid plaintiff that defendant's counsel did not move to strike the answer as not responsive. The answer was responsive; but, even though it had not been, defendant's counsel did not have the right to have it stricken if it was competent evidence, and the court ruled that it was. In Merkle v. Bennington, 58 Mich. 156, 24 N.W. 776, 55 Am. Rep. 666, Mr. Chief Justice Cooley states the rule upon the subject in the following words:

"The objection that an answer is not responsive is one to be made by the party who puts the question, not by his antagonist. If the answer is in itself proper evidence, the party who is examining the witness has a right to take and retain it if he chooses to do so. His doing this merely saves him the trouble of putting another question to draw it out."

To the same effect is Dunahugh's Will, 130 Iowa 692, 107 N.W. 925.

Indeed, the rule is elementary that the right to move to strike upon the ground that the answer is irresponsive is a shield in the hands of the examiner, and not a sword in the hands of his adversary.

The court, therefore, erred in permitting plaintiff to answer the question and of which error the appellant has a clear right to complain. The only question that is doubtful is whether, in view of the other evidence relating to the value of the shed, the error is of that character which requires a reversal of the judgment on that ground alone. In view of the whole evidence we should hesitate to reverse the judgment upon that error alone, but for the reason that the judgment must be reversed on other grounds, we deem it only fair and just to the trial court to admonish it not to repeat the error on a retrial of the cause.

It is further contended that the court erred in admitting evidence on behalf of the plaintiff relative to the starting of fires and the casting out of live sparks by defendant's engines before and after the fire in question occurred. The evidence was admitted without objection, and the question arises as follows: The plaintiff did not identify the engine in his complaint, but, from the evidence offered in his behalf, it was made to appear that only one train had passed plaintiff's premises on the day the fire occurred which could have caused the fire. The engine was, however, not identified by plaintiff's evidence; that is, its number was not shown. When plaintiff rested his case defendant's counsel moved for a nonsuit, and, in connection therewith, also moved that all of the evidence respecting the setting of fires and the casting out of sparks by other engines be stricken from the record. The court refused to strike the evidence, and also denied the motion for a nonsuit. Error is now predicated on the court's ruling in refusing to strike the evidence.

In view that the evidence, in the first instance was admitted without objection we are of the opinion that the question raised by counsel that the evidence of other fires which were caused by the defendant's engines before and after the fire in question is not fairly presented for review. In view that counsel failed to interpose timely objection, he cannot, as a matter of right, now insist that the evidence should have been stricken or that...