Hilbert v. Spokane International Railroad Co.

• Decision Date: 13 June 1911
• Citation: 20 Idaho 54,116 P. 1116
• Parties: R. L. HILBERT, Respondent, v. SPOKANE INTERNATIONAL RAILROAD COMPANY, Appellant
• Court: Idaho Supreme Court

116 P. 1116

20 Idaho 54

R. L. HILBERT, Respondent, v. SPOKANE INTERNATIONAL RAILROAD COMPANY, Appellant

Supreme Court of Idaho

June 13, 1911

SUFFICIENCY OF EVIDENCE-ADMISSION OF EVIDENCE-STATEMENT BY SECTION FOREMAN-STATEMENTS BY STATION AGENT-ADMISSIBILITY OF STATEMENTS-IMPEACHING WITNESS-MATERIALITY OF IMPEACHING QUESTION-SETTING FIRES-STATEMENT BY THIRD PARTY OF CAUSE OF FIRE-GIVING INSTRUCTIONS-SENDING INSTRUCTIONS TO JURY-ROOM.

(Syllabus by the court.)

1. Sufficiency of evidence to support verdict and judgment commented upon, but question as to whether or not it presents a substantial conflict not decided.

2. Where a section foreman for a railroad company is charged with the duty of making written reports to his employer as to fires occurring along the track or line of road within his section, and as to the cause of such fires, held, that where one is prosecuting an action against the railroad company for carelessly and negligently setting a fire whereby he was damaged, it is not error for the court to admit a report made by the section foreman as to the time, place and circumstances of such fire.

3. The true rule with reference to the admission of statements and reports made by employees of a corporation is: If the employee makes a report which falls within the line of his duties, and which is required of him by the terms or nature of his employment, then such statement or report is admissible on behalf of a person adversely interested or whose interest is affected by or involved in the statement of facts contained in such report or statement; if, on the other hand, the statement made by the employee concerns a matter outside of the line of his employment and concerning which he was not charged with any duty, a statement made by him concerning such matter is not admissible in evidence against his employer.

4. Statements made by station agent as to the cause of fire which started in timber along the railroad track or right of way, and as to the particular engine which probably set the fire, are admissible against the company in an action prosecuted against the company for the recovery of damages caused by a fire set along or near the company's road and right of way.

5. A witness may be impeached by showing that he has made at other times statements inconsistent with his present testimony, but before such contradictory statements may be shown, the proper foundation must be laid therefor in compliance with the provisions of sec. 6083 of the Rev. Codes.

6. A witness can only be impeached by proof of contradictory statements with reference to some fact which becomes material in the case.

7. In an action prosecuted against a railroad company for carelessly and negligently setting fire along the line of its track and right of way, whereby the plaintiff was damaged by the destruction of his growing timber, it is not admissible to prove the statements of a third party made at the time the fire was raging, which statements tended to show that someone else had set the fire, and that it was not started by the railroad company.

8. Under the provisions of subd. 4 of sec. 4383, Rev. Codes, it is the duty of the court to send all written instructions to the jury-room for the use of the jury in considering the case, unless one of the parties to the action makes objection to the giving of written instructions, as provided by subd. 6 of sec. 4383, in which event the court must charge the jury in accordance with the provisions of secs. 4384 and 4385 unless the parties consent to the giving of oral instructions as provided by subd. 7 of sec. 4383, Rev. Codes.

APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. Robert N. Dunn, Judge.

Action by plaintiff to recover damages from the defendant caused by the careless and negligent setting of fire. Judgment for the plaintiff, and defendant appealed. Reversed.

Judgment reversed, and a new trial ordered. Costs awarded in favor of appellant.

Allen &amp Allen and Whitla & Nelson, for Appellant.

"In an action to recover damages for loss occasioned by railroad fires, it devolves on the plaintiff to prove by a preponderance of the evidence that the fire was communicated by sparks or cinders from the railroad engine." (Union P. Ry. Co. v. Keller, 36 Neb. 189, 54 N.W 420; Stratton v. U. R. R. Co., 7 Colo. App. 126, 42 P. 602; Peffer v. Mo. P. Ry. Co., 98 Mo.App. 291, 71 S.W. 1073.)

The courts have held in cases where the evidence was very much stronger than in this case that it was insufficient to justify a verdict for plaintiff. (L. & N. R. Co. v. Mitchell, 17 Ky. L. 977, 29 S.W. 860; Megow v. C. M. & St. P. Ry. Co., 86 Wis. 466, 56 N.W. 1099; Lake Erie & W. R. Co. v. Gossard, 14 Ind.App. 244, 42 N.E. 818; Cyle v. Denver R. G. R. Co., 37 Colo. 298, 86 P. 1010; International & G. R. Co. v. Morgan, 28 Tex. Civ. App. 348, 67 S.W. 425.)

The admission in evidence of Plaintiff's Exhibit "A," which was an alleged statement or admission of defendant's agent Travers, is reversible error. A statement of an agent or employee such as a section foreman is not admissible to bind the defendant, and it makes no difference whether this admission be verbal or in writing. (A. T. & S. F. Ry. Co. v. Osburn, 58 Kan. 768, 51 P. 286; Union P. Ry. Co. v. Fray, 35 Kan. 700, 12 P. 98; Tennis v. Railway Co., 45 Kan. 503, 25 P. 876; A. L. & S. F. Ry. Co. v. Wilkinson, 55 Kan. 83, 39 P. 1043; 16 Cyc. 1214.)

The court erred in refusing to allow admissions made by Mrs. Travers at the time of the fire, as these actually were a part of the res gestae, simultaneous with the beginning of the fire and showing exactly the cause of the same. (State v. Kaiser, 124 Mo. 651, 28 S.W. 182.) This is even the rule in criminal cases. (State v. Desroches, 48 La. Ann. 428, 19 So. 250; Sullivan v. State (Miss.), 32 So. 2.)

The alleged admissions or declarations of the station agent were not admissible as proof of the plaintiff's case, and therefore they are a collateral matter upon which impeachment will not lie. (Shephard v. State, 88 Wis. 185, 59 N.W. 449; People v. Webb, 70 Cal. 120, 11 P. 509; Wojtylak v. K. & T. Coal Co., 188 Mo. 260, 87 S.W. 506; State v. Davidson, 9 S.D. 564, 70 N.W. 879.)

McBee & La Veine, for Respondent.

The trial judge did his duty, and his action was proper in refusing to grant a new trial. (Walsh v. Winston Bros., 18 Idaho 768, 111 P. 1090.)

It is a well-established rule of this court that when there is a substantial conflict in the evidence, the findings and verdict of the jury will not be disturbed. (Eaves v. Sheppard, 17 Idaho 268, 134 Am. St. 256, 105 P. 407; Edmondson v. Taylor, 17 Idaho 618, 106 P. 991; Valley L. Co. v. McGilvery, 16 Idaho 338, 101 P. 94; Lamb v. Licey, 16 Idaho 664, 102 P. 378; Just v. Idaho C. & I. Co., 16 Idaho 639, 133 Am. St. 140, 102 P. 381, Leggett v. Evans, 16 Idaho 760, 102 P. 486; Church v. Van Housen, 15 Idaho 249, 97 P. 36; Whitney v. Woodmansee, 15 Idaho 735, 99 P. 968; Later v. Haywood, 15 Idaho 716, 99 P. 828; Buckle v. McConaghy, 12 Idaho 733, 88 P. 100.)

The rebutting evidence of the appellant was not sufficiently clear to warrant the trial court in taking the case from the jury. (McCullen v. Chicago & N.W. Ry. Co., 101 F. 66, 41 C. C. A. 365, 49 L. R. A. 642; Minn. St. P. & S. S. M. Ry. Co. v. Emerson, 80 F. 993, 26 C. C. A. 296.)

AILSHIE, Presiding J. Sullivan, J., concurs.

OPINION

AILSHIE, Presiding J.

This action was instituted by the plaintiff for the recovery of damages sustained in the loss of growing timber. It was alleged by the plaintiff that the defendant railroad company carelessly and negligently maintained and operated locomotive engines which were not sufficiently and properly supplied with spark-arresters and appliances which prevent the escape of fire, and by reason of such neglect and failure to perform its duties it set fire on plaintiff's lands and burned off a large body of timber. Judgment and verdict were rendered and entered for the plaintiff, and defendant moved for a new trial and has appealed from the judgment and order denying its motion.

Numerous errors have been assigned, but they are properly divisible into two groups; first, the insufficiency of the evidence to support the verdict and judgment, and, second, errors committed by the court in the admission and rejection of evidence.

An examination of the whole record in this case convinces us that a new trial ought to be had in this case. In the first place, there is a very serious and grave doubt if there is substantial evidence to support the verdict. A great deal of evidence was introduced tending to show that the fire was not set by the railroad company or from its locomotives, but that it was rather started by one A. C. Travers, who lived near the railroad track and also close by the plaintiff's premises. It appears from the evidence of several witnesses that he had been burning brush and stumps and clearing land about his house and that the fire started from this cause. In view, however, of the fact that this case must be retried and that such errors occurred in the former trial as to necessitate a new trial, we are not going to reverse the case for insufficiency of the evidence, nor are we going to make further comment on the sufficiency of the evidence.

Since this case must be tried again, it will be necessary for us to consider such rulings of the court on the admission and rejection of evidence as are likely to arise upon a new trial. A. C. Travers was the section foreman over that portion of appellant's road along which this fire started. It seems that shortly after the fire he made what is termed a "fire report" to the company, which report is as follows: "On the first day of August, about 1:45 P. M., a fire...