Norfolk & W. Ry. Co v. Thomas

• Decision Date: 03 November 1910
• Court: Virginia Supreme Court
• Parties: NORFOLK & W. RY. CO. v. THOMAS et al.

110 Va. 622

66 S.E. 817

NORFOLK & W. RY. CO.

v.THOMAS et al.

Supreme Court of Appeals of Virginia.

Jan.13, 1910.

1. Trial (§ T5*) — Cross-Examination—Objections to Evidence.

Where a witness is cross-examined as to matter not touched upon in his examination in chief, the party cross-examining him cannot object to the evidence brought out, for as to such evidence he is the witness of the party cross-examining him.

[Ed. Note.—For other cases, see Trial, Cent. Dig. § 177; Dec. Dig. § 75.*]

2. Appeal and Error (§ 1053*)—Harmless Error—Admission op Evidence—Cure by Instructions.

The prejudice from the admission of testimony elicited on cross-examination as to matters not touched on in the examination in chief is avoided by an instruction which correctly instructs the jury as to the matter about which the witness testified.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4180-4182; Dec. Dig. § 1053;* Trial, Cent. Dig. § 977.]

8. Trial (§ 63*)—Order of Proof —Establishment of Plaintiffs' Case by Defendant's Witnesses.

In an action against a railroad company for burning a dwelling, there was evidence that four trains passed the house during the hour when the fire might have been set; but plaintiffs were unable to identify the train that caused the fire. Held that, the train dispatcher being on the stand with the records of the company, it was competent for plaintiffs to make the dispatcher their witness for the purpose of showing what trains had passed the house at an opportune time for starting the fire.

TEd. Note.—For other cases, see Trial, Cent. Dig. § 151; Dec. Dig. § 63.*]

4. Railroads (§ 481*) — Fires — Actions for Injuries—Admissibility of Evidence.

The time-table of a railroad company, showing the schedule speed of its trains in 1908, is admissible in an action against the company for burning a dwelling in 1903; there being no evidence to show that there was any change in the conditions of the roadbed or the traffic between the two dates that would affect the speed of its trains, and there being no apparent reason why a greater speed was permissible in 190S than in 1903, and the evidence showing that the speed of trains passing plaintiffs' residence at the time the fire was caused was eight miles an hour in excess of that of 1908, as the time-table tends to show what defendant regarded as a reasonable rate of speed in 1903.

[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1717-1719; Dec. Dig. § 481.*]

5. Damages (§ 217*)—Injuries to Property —Instructions.

In an action against a railroad company for burning plaintiffs' house, an instruction asked by defendant that the jury, in considering the value of the house, "must take in view its location, and, if they believe from the evidence that the value of the house upon the farm was not such a sum as would replace it, the jury shall only award such a sum as the place has suffered by reason of its destruction, " was properly refused, as it is not clear, and is misleading, and the measure of damages in such case is the value of the property destroyed.

[Ed. Note.—For other cases, see Damages, Cent.. Dig. §§ 556-559; Dec. Dig. § 217.*]

6. Limitation of Actions (§ 200*)—Instructions.

In an action brought within the statutory period against a railroad company to recover for burning plaintiffs' house, an insurance company intervened, asking that it be repaid its loss by the fire out of any damages plaintiffs may recover, and plaintiffs agreed of record that the company should be so paid. Held, that an instruction requested by defendant that if defendant negligently caused the fire it is liable to the intervening petitioner to the extent of the insurance paid by it, but that in determining the defendant's liability to the insurance company the jury may consider the fact, if it be a fact, that for more than five years after the fire the insurance company made no demand on defendant for repayment of the loss occasioned it, is properly refused, as the right of the plaintiffs through whom the company claims would not be affected by the time of intervention, and the instruction seeks to introduce a wholly irrelevant issue that could only confuse and mislead the jury.

[Ed. Note.—For other cases, see Limitation of Actions, Cent. Dig. § 731; Dec. Dig. § 200.*]

7. Railroads (§ 480*) — Fires — Burden of Proof.

In an action against a railroad company for burning plaintiffs' house, the evidence showed that four trains of defendant passed the scene of the fire within less than one hour, and that the fire may have originated from any one of the engines; but plaintiffs did not identify any particular train as being responsible for the fire, but did show that the fire could only have been caused by a passing train. Held, that defendant was presumptively chargeable with negligence, and was obliged to assume the burden of showing that each of the four engines was properly equipped and operated.

[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1710-1712; Dec. Dig. § 480.*]

8. Railroads (§ 481*)—Fires—Admissibility of Evidence.

Where the particular locomotive which caused the fire is not identified, plaintiffs, in an action for damages from fire which they charged was set by defendant's locomotive, may show defects in the spark-arresting apparatus of any one of defendant's locomotives which may have caused the fire, and defendant may show that all of its locomotives passing on the day of the fire were properly equipped.

[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1719-1723; Dec. Dig. § 4S1.*]

9. Railroads (§ 480*) — Fires—Actions for Injuries—Burden of Proof.

An instruction, in an action against a railroad company for burning plaintiffs' house, that the burden is on defendant to prove that it has availed itself of all the best mechanical contrivances and inventions in known practical use to prevent the communication of fire, correctly states the law.

[Ed. Note.—For other cases, see Railroads, Cent. Dig. § 1714; Dec. Dig. § 480.*]

10. Trial (§ 296*)—Error in Instruction-Cure by Other Instructions.

If an instruction, in an action against a railroad company to recover for injuries from a fire caused by its locomotives, that the burden is on defendant to prove that it has availed itself of all the best mechanical contrivances and inventions in known practical use, is improper, no prejudice results therefrom, where the court adds at the instance of defendant that the law recognizes that the skillful do not agree in the matter of instrumentalities, and allows every one using mechanical devices the freedom of action and judgment which must be an incident tosuch differences in judgment, and the law does not permit the jury to condemn a device because some other person using a similar device prefers a different pattern.

[Ed. Note.—For other cases, see Trial, Cent. Dig. § 709; Dec. Dig. § 296.*] 11. Railroads (§ 453*) — Fires—Actions for

Injuries—Care Required.

In an action against a railroad company for burning plaintiffs' house, an instruction that, when the doing of any particular act is attended with unusual hazards, unusual care must be exercised, but, when the performance of the act is attended with only ordinary hazards, a less degree of care is required; that in proportion as the hazards increase there should be a corresponding increase in the care exercised; that in an unusually dry season, when all inflammable material is very dry and liable to be set on fire from the smallest spark, and the wind is blowing from an engine toward wooden buildings or combustible material, greater care and caution are required than when these conditions do not exist—was correct.

[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1657, 1659; Dec. Dig. § 453.*]

Error to Circuit Court, Appomattox County.

Action by J. O. Thomas, as trustee for his wife, and others against the Norfolk & Western Railway Company. Judgment for plaintiffs, and defendant brings error. Affirmed.

Kirkpatrick & Howard, for plaintiff in error.

Flood & Ferguson and F. C. Moon, for defendants in error.

HARRISON, J. This action was brought by the defendants in error to recover of the Norfolk & Western Railway Company damages for its alleged negligence in burning a dwelling house held by the plaintiff J. O. Thomas, as trustee for his wife, which was occupied by the plaintiffs as their home. There was a verdict and judgment in favor of the plaintiffs, which this writ of error brings under review.

Objection is taken to the action of the circuit court in permitting J. I. Harvey, an engineer who had run on the Southern Railway, to testify that the device for arresting sparks employed by the Southern Railway was, in his opinion, preferable to that used by the defendant company; that it was easier to operate a train with the device used by the defendant; but that the device used by the Southern threw less fire.

The record shows that this witness was not introduced by the plaintiffs to speak as to the relative merits of different spark arresters, and was not asked upon his examination in chief to give any evidence on that subject The plaintiff in error, on cross-examination, made the witness his own on the subject of the best form of spark arrester, and the question objected to, which was asked by the plaintiffs, was responsive to the evidence which the defendant had drawn out from its own witness. The defendant cannot now complain of evidence that it alone is responsible for. Moreover, if the defendant could have suffered any prejudice on this account the harm was avoided, at its Instance, by Instruction No. 2, which fully guards the rights of the defendant in this respect by telling the jury: "That the law recognizes the fact that the skillful do not agree in the matter of instrumentalities and allows every one using mechanical devices the freedom of action and judgment which must be an incident to such differences in judgment. The law does not permit a jury to condemn a device because some other...