Patterson v. Baltimore & O.R. Co.
| Decision Date | 14 November 1918 |
| Docket Number | 7. |
| Citation | 105 A. 159,133 Md. 276 |
| Parties | PATTERSON v. BALTIMORE & O. R. CO. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court, Carroll County; Robert Moss, Judge.
"To be officially reported."
Action by Lester S. Patterson against the Baltimore & Ohio Railroad Company. Verdict and judgment for defendant, and plaintiff appeals. Reversed, and new trial ordered.
Argued before BOYD, C.J., and BRISCOE, THOMAS, URNER, STOCKBRIDGE and CONSTABLE, JJ.
T Scott Offutt, of Towson, for appellant.
Francis Neal Parke, of Westminster (James A. C. Bond, of Westminster on the brief), for appellee.
The record in this case contains 15 bills of exceptions relating to rulings on the admissibility of evidence and the instruction of the jury in the trial of an action for damages sustained by the plaintiff as a result of the burning of his growing timber by a fire alleged to have originated on the defendant railway company's right of way, or to have been caused by sparks escaping from its locomotives. There was evidence tending to prove that the fire was communicated to the plaintiff's timber, across intervening land covered with dry grass and weeds, from a pile of burning cross-ties on the defendant's right of way. The case was accordingly submitted to the jury upon the basis of this theory as to the origin of the fire. It was held by the trial court that there was no evidence legally sufficient to show that the fire was caused by sparks from the defendant's locomotives, and the jury were instructed that the plaintiff was not entitled to recover under the count of his declaration which set forth that theory. The verdict and judgment were for the defendant and the plaintiff has appealed.
The first, second, sixth, seventh, eighth, ninth, tenth, eleventh, and twelfth exceptions refer to the refusal of the court below to admit certain testimony offered by the plaintiff with a view to proving the damages he sought to recover. The timber land affected by the fire had an area of about 100 acres, and formed part of a tract of about 300 acres, of which approximately one-half was used and cultivated as a farm.
It was proposed by the plaintiff to prove, as the measure of his damages, the difference in value of the timber land before and after the fire. The court declined to admit such estimates of value, as applied to the timber land alone, but permitted the plaintiff to testify as to the value before and after the fire of the entire tract of which the timber land formed a part. It is not apparent how the plaintiff could have been injured by this ruling. The method of valuation thus applied would tend to enhance rather than reduce the amount of his possible recovery. If the effect of the destruction of the growing timber upon the value of the farm as a whole is to be considered, the damages might well be larger than if they were based solely upon the loss of value resulting to the timber land independently of its relation and utility to the entire tract. But, as the declaration referred only to the timber land and claimed damages exclusively for injury by fire to that species of property, we think the offer to prove the damages on that basis, by witnesses who appeared to be qualified to testify on the subject, should have been admitted, the proffer having been made with due regard to the settled rule in this state that the measure of damages in such cases is the difference in the value of the property before and after the injury by which its value is diminished. Belt R. Co. v. Sattler, 100 Md. 306, 59 A. 654; 102 Md. 595, 62 A. 1125, 64 A. 507; Carter v. Md. & Pa. R. Co., 112 Md. 599, 77 A. 301; W. U. Tel. Co. v. Ring, 102 Md. 677, 62 A. 801, 5 Ann. Cas. 969; W. M. R. Co. v. Jacques, 129 Md. 400, 99 A. 549; W. U. Tel. Co. v. Rasche, 130 Md. 126, 99 A. 991; Susq. Trans. Co. v. Murphy, 131 Md. 350, 101 A. 791.
The third exception was taken to the rejection of testimony as to statements of trackmen in the service of the defendant, made while the fire was at its height, and they were working to arrest its progress, to the effect that they started the fire and it got beyond their control. The witness by whom this declaration was to be proved was living at the time of the fire in a house on the plaintiff's farm. She had testified that she first noticed the fire about the middle of the afternoon. It was coming right from the railroad tracks under a heavy wind blowing from that direction. The fire reached to within a few yards of the house occupied by the witness, which was located near the woods. It was at this place and point of time that three railroad men appeared and are said to have made the statement which the plaintiff desired to prove. Three trackmen later testified, as witnesses for the...
To continue reading
Request your trial