Knowlton v. Central of Georgia Ry. Co.

• Decision Date: 22 April 1915
• Docket Number: 508
• Citation: 192 Ala. 456,68 So. 281
• Parties: KNOWLTON v. CENTRAL OF GEORGIA RY. CO.
• Court: Alabama Supreme Court

68 So. 281

192 Ala. 456

KNOWLTON v. CENTRAL OF GEORGIA RY. CO.

No. 508

Supreme Court of Alabama

April 22, 1915

Appeal from Circuit Court, Coosa County; A.H. Alston, Judge.

Action by Charles Knowlton against the Central of Georgia Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Riddle Ellis & Riddle, of Goodwater, for appellant.

Barnes & Brewer, of Opelika, for appellee.

SOMERVILLE J.

On direct examination, the owner of the burned buildings, who was a witness for plaintiff, testified that a day or two after the fire he saw on the ground and picked up several burned matches, about three feet from the southwest corner of the building which first caught, and which was farthest from the railroad. The witness had testified that he thought the fire was of incendiary origin. On redirect examination the court sustained defendant's objection to plaintiff's question: "Was that fire hot enough to have burned up matches in three feet of it?"

In view of the fact that the matches were very small in size, and lying flat upon the ground, and that the wind blew the fire and, to some extent, the heat in an opposite direction, we do not think the witness was qualified to say that the matches would have been entirely consumed by the heat from the building. His answer would have been a mere guess, which the jury could have made quite as well as the witness.

Defendant's witness Thompson, the engineer on its train, testified on the office and quality of spark arresters. He said:

"I don't know how large the meshes to one of the spark arresters ought to be when properly constructed. It is between three-sixteenths and one-fourth of an inch. The sparks on my engine could not be very large; whatever size could get through the mesh--about the size of the end of a cedar pencil."

Plaintiff asked him, if the spark arrester were in proper condition could a spark get through that could be thrown 60 yards, and be seen on the ground for that distance. It does not appear that the witness was any more capable than the jury of drawing the inference called for, at least as to the visibility of the spark.

Moreover the question was hypothesized, and there was no evidence that either of the engines that might have thrown sparks causing this fire had in fact at any time thrown such a spark as was hypothesized. The question was properly rejected.

Plaintiff's question to this witness, "If she would throw out a piece of fire as big as a marble 60 yards, would that indicate that there wasn't any netting in there?" was also objectionable as being based upon an abstract hypothesis, and also because the size of "a marble" is too indefinite to be the basis of a relevant conclusion. So far as the right to test the knowledge and credibility of the witness on cross-examination is concerned, this witness had professed no knowledge on this subject, and the discretion of the court in this behalf was not abused. The undisputed evidence was that these engines were equipped with spark arresters of meshed netting, and the twin question, "What size cinders would she have to throw out to indicate that there was no netting at all?" was collateral to the issue, and, for the reasons above stated, was not essential to the proper cross-examination of the witness.

Plaintiff also asked this witness, "How far from a railroad will an engine properly equipped set a house afire?" and "How far do you think ordinary sparks could be blown coming out of an engine well equipped?" Although, upon defendant's objection, these questions were excluded, the bill of exceptions shows that the witness answered both of them to the extent of his knowledge, and no prejudice is...