Norfolk & W. Ry. Co v. Briggs

• Decision Date: 29 September 1904
• Citation: 103 Va. 105,48 S.E. 521
• Court: Virginia Supreme Court
• Parties: NORFOLK & W. RY. CO. v. BRIGGS.

48 S.E. 521

103 Va. 105

NORFOLK & W. RY. CO.

v.BRIGGS.

Supreme Court of Appeals of Virginia.

Sept. 29, 1904.

RAILROADS — FIRES — NEGLIGENCE—EVIDENCE —ADMISSIBILITY —APPEAL.

1. In an action against a railroad for alleged negligence in setting fire to property by sparks from its engines, after plaintiff has identified the engine alleged to have communicated the fire complained of, he is not entitled to introduce other evidence as to fires having been communicated along the defendant's right of way without having first shown that such other fires were communicated from the same engine.

¶ 1. See Railroads, vol. 41, Cent Dig. §§ 1719-1722.

2. Where it appears on appeal that illegal evidence has been admitted, the judgment must be reversed, as it cannot be said what effect it may have had on the minds of the jury.

3. In an action against a railroad for setting fire to property by sparks from its engines, testimony as to the speed of a train at a point about two miles distant from the scene of the fire is inadmissible.

4. Where a witness had testified touching a fire near the defendant's right of way, it was error to permit him to answer the question whether he saw anything from which the fire could have started except the railroad.

5. The refusal of the court to permit a witness to testify, at the instance of the defendant, with reference to fires in the same vicinity, set out by duly equipped locomotives on the lines of other railways, was proper.

6. That in the examination of the plaintiff leading and improper questions were propounded is not cause for reversal, the defendant having been left free to cross-examine the witness.

7. It was proper to permit the plaintiff in an action to recover for a stock of merchandise destroyed by fire to give an estimate of the total amount of purchases made by him while he had occupied the property up to the time of the fire and his annual sales during the same time.

8. It was proper to allow a, witness to' state the valuation of the goods plaintiff had on hand on the day prior to the fire, based on a cursory view, not made with any purpose of valuation, nor any expectation such as would have caused him to give special attention to the matter.

9. It was not error to permit a witness to give an estimate of the value of the goods seen at plaintiff's store two days before the fire.

Error to Circuit Court, AVarren County.

"Action by Robert L. Briggs against the Norfolk & Western Railway Company. Judgment for plaintiff, and defendant brings error. Reversed.

Downing & Richards, for plaintiff in error.

A. Moore, Jr., for defendant in error.

CARDWELL, J. This action was brought by the defendant in error, Robert L. Briggs, to recover from the plaintiff in error, the Norfolk & Western Railway Company, damages sustained by reason of the loss of a stock of merchandise by fire, which it is alleged was communicated to the building containing the merchandise in question from an engine of the plaintiff in error on the 13th of November, 1901.

The building was situated on the east side of the railway tracks at Ashby station, about 33 feet from the main line, and there was within 15 feet of this building a warehouse. On the day named the fire was discovered on the roof of the warehouse, about 20 minutes after train No. 88, drawn by engine No. 169, had passed the buildings, going north. The warehouse burned, and communicated the fire to the building occupied by the defendant in error, and both were totally destroyed.

It appears from the evidence that, if the fire was caused by the plaintiff in error, it emanated from this particular engine.

The jury rendered a verdict in favor of the defendant in error assessing his damages at $2,600, with interest, and the court, having refused to set the verdict aside, rendered judgment thereon, and from that judgment the case is before us on a writ of error awarded by one of the judges of this court The first question to be considered arises out of the exceptions taken to the rulings of the circuit court admitting evidence introduced by the defendant in error over the objection of the plaintiff in error.

The declaration charged that the fire was caused by sparks or ignited cinders thrown upon or against the building from one of plaintiff in error's engines—that is, by sparks emitted from the smokestack; the negligence thereby imputed being that the engine setting out the fire was not properly equipped with a spark arrester, or that the engine in question was not operated with due care and caution.

After the introduction of evidence to show that the fire was communicated to the building from a certain engine, in use by the plaintiff in error which passed Ashby station about 20 minutes before the fire on the roof of the warehouse was discovered, defendant in error introduced evidence to prove that other fires had originated along plaintiff in error's right of way, without showing first that these fires were set out by the engine alleged to have communicated the fire to the building at Ashby, or that they were set out by reason of plaintiff in error failing to provide its engines with reasonably safe spark arresters, or to use due care and caution in the conduct and management of the engines from which these fires were communicated. The precise question, therefore, presented is whether or not, after the plaintiff in an action of this character has identified with certainty the engine alleged to have communicated the fire complained of, it is admissible to introduce other evidence as to fires having been communicated along the railway's right of way, without having first shown that these other fires were communicated from the engine in question.

In Brighthope Ry. Co. v. Rogers, 76 Va. 445, the engine in question was identified, and the court held that evidence of other fires caused by the same engine was admissible.

In New York, P. & N. R. Co. v. Thomas, 92 Va. 606, 24 S. E. 264, such evidence was admitted without objection, and the court merely held that the lower court did not err in instructing the jury that it might consider this evidence after it had been thus admitted.

In Patteson v. C. & C. Ry. Co., 94 Va. 16, 26 S. E. 363, the evidence admitted was as to other fires caused by the same engine.

The case of Kimball & Fink v. Borden, 95 Va. 203, 28 S. E. 207, seems to sustain the admissibility of evidence as to other fires in a case like the present, but the record in that case shows that, after the offending engine was identified in the course of the trial, no evidence of fires caused by other engines was objected to, and therefore the question here under consideration was not involved in the ruling of the court.

In White v. New York & N. R. Co., 99 Va. 357, 38 S. E. 180, the engine was identified, and all that was said by this court which has any sort of bearing upon the question under consideration was: "Notwithstanding these conditions, so inviting to fire from the sparks of a passing engine, it is an established fact in this case that no fire occurred at any point along the entire route, other than that alleged in this case, as a result of sparks emitted by the engine in question after it came from the repair shops." Whether or not this is to be considered as an implied recognition that the only evidence as to other fires which would have been competent would have been as to fires caused by sparks emitted by the engine in question, it is not authority for the proposition that evidence is admissible as to other fires not shown to have been set out from the engine in question. Nor does the case of N. & W. Ry. Co. v. Perrow, 101 Va. 345, 43 S. E. 614, have any bearing upon the question here, as all of the evidence in that case was as to sparks emitted and fires caused by the same train which caused the fire in question.

Plaintiff in error here, as we have seen, is not charged with the general habit of negligence, nor with frequent defects in its engines. Therefore, if convicted of negligence in this case, it must be by proof of defects in the engine No. 169, or of the omission of duty upon the part of the crew which operated it upon the day of the fire which destroyed the property of defendant in error.

The question here under consideration has repeatedly arisen and been passed upon by the highest courts in other states, which have uniformly held that, where the engine was identified which it was claimed had set out the fire, evidence as to other fires along the line of the railway, not shown to have been set out by the identified engine, is not j admissible.

In Hygienic Plate-Ice Mfg. Co. v. Raleigh & Augusta A. L. R. R. Co., 126 N. C. 797, 36 S. E. 279, the opinion says: "This evidence of fires at various times and at other places, caused by sparks from other engines, both before and after August 29th, we must hold...