Jewell v. Hoosac Tunnel & W. R. Co.

• Decision Date: 09 October 1911
• Citation: Jewell v. Hoosac Tunnel & W. R. Co., 81 A. 238, 85 Vt. 64 (Vt. 1911)
• Court: Vermont Supreme Court
• Parties: JEWELL v. HOOSAC TUNNEL & W. R. CO.

81 A. 238

85 Vt. 64

JEWELL

v. HOOSAC TUNNEL & W. R. CO.

Supreme Court of Vermont. Windham.

Oct. 9, 1911.

Exceptions from Windham County Court; William H. Taylor, Judge.

Action by Edward K. Jewell against the Hoosac Tunnel & Wilmington Railroad Company.

Judgment for plaintiff, and defendant excepts.Affirmed.

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

Chase & Daley and E. W. Gibson, for plaintiff.

Haskins & Schwenk, for defendant.

POWERS, J.This action is brought to recover damages caused by a fire set by the defendant's engine.The facts are much like those in Chase v. H. T. & W. R. R. Co., 81 Atl. 236, and the record indicates that the burning here complained of was a part of that fire, or at least was set by the same engine on the same trip over the defendant's road.

Walter Wright was a witness for the plaintiff.He was at the fire, and helped fight it.He traced its course back to the defendant's track, where he observed, on the right of way, a growth of weeds, grass, brakes, and goldenrod.Counsel for the plaintiff then directed him to "describe to the jury how this growth of weeds and grass and brakes and goldenrod looked, and their height, within a distance of two rods of the railroad track, and up next to the burned stretch."The witness replied, "It looked to me like an old pasture that had not been pastured, as near as I could describe it."Thereupon the defendant objected, and asked that the answer be stricken out; but the court allowed it to stand, and noted an exception.The plaintiff insists that this objection was not seasonable, and that the exception is therefore unavailing under the rule in State v. Powers, 72 Vt. 168, 47 Atl. 830.But this cannot be, for the objection was not to the question, but to the answer.Obviously, such an objection cannot be interposed in advance.But the objection, as made, was general, while it should have been specific.An objection to an answer, like an objection to a question, must point out the grounds upon which it is predicated, in order to afford the basis of an available exception.To hold otherwise would be to overturn a most salutary rule of practice, and require a trial court to rule on such questions without adequate information as to the nature of the objection.It may well be that cases might arise where the grounds of the objection are too obvious to require statement, but this case cannot be said to belong to that class.

Perley Aubertine, who was a fireman in the defendant's employ at the time of the fire, was called by the plaintiff, and testified that he ran over the defendant's road that day on a freight train, which ran to Wilmington ahead of the excursion train, the engine of which was said to have set the fire, and that he returned over the road after the excursion train had passed over it; that his train arrived back at the "Wheeler Farm Flat," where the fire was said to have started, about 4 o'clock in the afternoon; and that at that time there was no fire nearer the railroad track than 150 feet.The court, "after finding that the plaintiff had a right to cross-examine," as the exceptions state, allowed counsel for the plaintiff, subject to exception, to ask the witness the following questions: (1)"Did you not tell me that you saw fire and smoke up near the end of the railroad ties?"(2)"Did you not tell me that you heard Superintendent McTeer say that the excursion train set the fire?"Both these questions the witness answered in the negative, and the plaintiff offered no evidence in contradiction.The defendant says it was error to permit this, because of the rule that one cannot impeach his own witness, as laid down in Cox v. Eayres, 55 Vt. 24, 45 Am. Rep. 583.But since the passage of No. 49, Acts of 1886(P. S. 1597), one may, by leave of court, prove the contradictory statements of his witness, if the court is of opinion that the witness is adverse.All that appears here is that the court found that the plaintiff had a right to cross-examine the witness.It is unnecessary to consider whether this should be taken to mean that the witness was hostile, for, it not appearing otherwise, this court will presume that the court below found the fact of the witness' hostility; the rule being that when the admissibility of evidence depends upon a preliminary finding of fact this court, in support of the ruling below, will presume that the required fact was found, unless the record shows that it was not.Bristol Mfg. Co. v. Palmer, 82 Vt. 438, 74 Atl. 76.

F. W. Crosier, one of the defendant's engineers, testified about the construction and operation of the spark arresters and ash pans on the defendant's engines.He said that coke cinders die out very quickly, and that he never knew of fires being set by coke cinders from his engine.The exceptions state that it was shown that coke was the fuel then being used in defendant's engines.Subject to exception, counsel for the plaintiff was allowed to cross-examine the witness (so far as the defendant now complains) as...