Moore v. Atlantic Coast Line R. Co.

• Decision Date: 03 November 1926
• Docket Number: 12096.
• Parties: MOORE et al. v. ATLANTIC COAST LINE R. CO. et al.
• Court: South Carolina Supreme Court

135 S.E. 473

137 S.C. 319

MOORE et al. v. ATLANTIC COAST LINE R. CO. et al.

No. 12096.

Supreme Court of South Carolina

November 3, 1926

Appeal from Common Pleas Circuit Court of Barnwell County; C. C Featherstone, Judge.

Action by B. S. Moore and another against the Atlantic Coast Line Railroad Company and another. Judgment for plaintiffs, and defendants appeal. Reversed and remanded for a new trial.

Douglas McKay, of Columbia, and Harley & Blatt, of Barnwell, for appellants.

James A. Kennedy, of Williston, and Brown & Bush, of Barnwell, for respondents.

BLEASE J.

The appeal in this cause was heard at the November session, 1925 of this court. Hon. J. H. MARION, former Associate Justice as an Acting Associate Justice, delivered the opinion of the court, which reversed the judgment below and remanded the cause for a new trial. Hon. R. C. WATTS and Hon. T. P. COTHRAN, Associate Justices, and Hon. R. O. PURDY, Acting Associate Justice, concurred in the opinion.

A petition for a rehearing on the part of the respondents was duly filed, and a majority of the justices, who heard the cause, thought that the petition should be granted, and an order to that effect was accordingly passed.

The opinion of Acting Associate Justice MARION was as follows:

"In an action for the recovery of damages on account of the loss of a ginnery building and contents, alleged to have been caused by fire communicated by one of the defendant railroad's locomotive engines, operated by the defendant Boone, the plaintiffs recovered a verdict against both defendants. From judgment thereon the defendants appealed upon four exceptions, one of which (exception 1) was abandoned at the hearing. The points raised by the three remaining exceptions will be considered in order.

" The first of these (exception 2) is that the trial court erred in permitting Ben Hughes, a witness for the plaintiff, and B. S. Moore, one of the plaintiffs, to testify over objection 'that other trains had set out fire at the same place.' This assignment of error is based upon the contentions that there was no testimony 'tending to show that the engine or engines were of the same class and equipped as the train in question was on the night of the fire,' and that in the absence of such testimony the evidence objected to was irrelevant and inadmissible. For reasons which will be briefly indicated, we think appellants' position is untenable. The relevancy of this class of testimony-that is, the probative force of similar acts or events-which is predicated upon the theory that in the natural world similar causes produce like results 'is a resultant of three main factors: (1) The extent of the similarity; (2) the observed regularity of action; (3) the presence or absence of modifying forces.' 22 C.J 742, § 933. For the reason that even where the conditions under which two events occurred are apparently similar, or as to certain of the conditions, are in fact identical, the absence of a former element or the presence of a new factor in a physical combination of causes may suffice to produce a very different result, the use of such evidence always entails the danger of its weight being overestimated and its importance exaggerated by the jury. For that reason, and others having to do with the practical inconvenience of trying a number of collateral issues at the same time, 'the rule is that it is within the discretion of the court, except under special circumstances, to reject evidence of former acts or occurrences as proof that a particular act was done or a certain occurrence happened.' 22 C.J. 741, § 834; McClintock v. Charleston & W. C. Ry., 83 S.C. 58, 64 S.E. 1009. In a case like that at bar, however, that 'evidence of other fires communicated by other locomotives of the defendant company, under similar conditions and at or near the same time, is admissible as tending to show a probability that the fire under investigation was set out in the same way,' is expressly recognized and ruled in our case of McGill Bros. v. Ry., 87 S.C. 178, 69 S.E. 156. But in that case the court (Mr. Justice Woods) points out and illustrates the necessity for the preliminary showing of substantial identity or essential similarity in the conditions of the two fires, in which connection the observation is made 'that the changes in the construction and the fixtures of locomotive engines are frequent, and hence it would not be fair to infer that an engine in use to-day probably set out fire because engines in use twelve months before had done so.' But the point here involved is not ruled by that observation-the soundness of which we are not disposed to question. In this case there was some evidence tending to refute the basic premise of fact upon which plaintiffs rested their case, viz., the physical possibility of 'live' sparks, capable of setting out the fire in question, being carried from engines on the tracks of the defendant railroad company to the premises where the fire occurred. Thus, it appeared that the ginnery, a frame structure, covered with corrugated iron, was not on the railroad's right of way; that between the railroad track and the ginnery there was a brick warehouse and a wooden seedhouse; and that when the fire in the ginnery was discovered there was no fire burning between the track and the ginnery. The testimony of Hughes and Moore was to the effect that within a period of three months before this fire they had observed freight trains on the defendant railroad company's line pass the ginnery at night, emitting sparks, and that on certain occasions they had put out fire from these sparks on the ginnery property. It was plaintiffs' contention that this particular fire had been set out by a certain freight train which passed the ginnery during the nighttime, emitting sparks, about a half hour before the fire was discovered. The testimony of Hughes and Moore, therefore, tended to rebut any inference that live sparks could not be carried from passing engines to plaintiff's premises and related to occurrences as to which the conditions as to place and distance were substantially identical and the conditions as to manner of emission and character of the sparks, substantially similar. In the absence of any evidential showing that there were differences in the conditions-such, for example, as differences in the weather conditions-which would impair or destroy the force of any inference reasonably to be drawn from this testimony, upon the issue as to the origin of the fire under investigation, we cannot say that in the admission of this testimony the trial court's discretion was erroneously exercised. Exception 2 is therefore overruled.

"The appellants' second contention (exception 3) is that the trial court erred in excluding the testimony of defendants' witnesses Baxley and Creech to the effect that one Gary Owens had attempted to bribe them to give certain testimony on behalf of the plaintiffs on the trial of this cause. The question presented cannot be fairly disposed of without a somewhat extended reference to the proceedings at the trial and to the evidential facts.

For the purpose of having the court pass on the admissibility of the testimony offered, defendants' counsel requested that the jury be permitted to retire from the courtroom. That request having been granted, the defendants offered and the court excluded this testimony, which, stated in narrative form, was in substance as follows:

Lonnie Baxley: In May of this year just before this case was to be tried, Gary Owens and Lige Collins came out to see me one Sunday afternoon. I have just got in and did not hear any of the testimony this morning. Mr. Collins is a painter here in town. My wife and his wife are sisters. He (Gary Owens) and Mr. Collins tried to get me to testify that I left his (Collins') house on the night of the fire, and that I went out by the Atlantic Coast Line depot, and that there was a train coming through, and that the fireman was shoveling coal, and that I went on a little further, and that I looked back and saw the fire taking place. He (Gary Owens) said he was going to have his hands testify that they were hunting that night and that they stopped there and saw it, and that they went on and saw the fire when they looked back. They offered me $75 to do that.

Josh Creech: I am a son of the excoroner here. Gary Owens, with Lige Collins, saw me and talked with me in the presence of Mr. Baxley one Sunday afternoon. He asked me if I was not at my sister's that night of the burning. My sister is Mrs. Lige Collins here in town. He asked me if I didn't pass Mr. Moore's gin, and that the train passed, and that the sparks were flying out, and that if I didn't go on a piece and see the ginhouse on fire. He wanted me to testify that and offered me $75 to testify that. He made that same statement to Mr. Baxley. I didn't come to court and they didn't subpoena me. I

got advice from older people whether or not to testify. The party I talked with told me no man ought to testify to a lie for money. I fire a skidder and get $1.50 per day.

Lonnie Baxley, recalled: Mr. Gary Owens did not say that anybody sent him to me, but he talked like he had an interest in the suit. He said he was to have an interest in the suit if he would go and get the witnesses. He did not say Mr. Moore sent him. I run a skidder. Before that fired at the sawmill about six miles from here.

After the foregoing testimony had been offered, and 'after the jury had gone to view the scene of the fire,' the following occurred:

'Mr. Brown: I understand, if the court please, that these two men that made the statements awhile ago are in court and would like to testify. I understand that they say now that the statements they made were not true, but that some of

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