Salo v. Duluth & I. R. R. Co.

• Decision Date: 07 March 1913
• Court: Minnesota Supreme Court
• Parties: SALO v. DULUTH & I. R. R. CO.

121 Minn. 78

140 N.W. 188

SALO

v.DULUTH & I. R. R. CO.

Supreme Court of Minnesota.

March 7, 1913.

Appeal from District Court, St. Louis County; Wm. A. Cant, Judge.

Action by Simon Salo against the Duluth & Iron Range Railroad Company. Verdict for defendant. From an order denying motion for judgment or for new trial, plaintiff appeals. Reversed.

Syllabus by the Court

Ruling of the trial court, in an action against a railroad company for loss by a fire alleged to have been set by it, allowing the defendant to read to the jury certain newspaper articles and telegrams concerning a fire at a certain point on the defendant's right of way, such items being offered in connection with the testimony of witnesses as to when the fire crossed the tracks at a point mentioned, held, upon the facts of the case, error.

Such error held prejudicial, and not cured by the court's observations and instructions.

Where a complaint in an action was not verified, and was neither signed by the plaintiff nor otherwise adopted by him, and no knowledge of its contents was brought home to him, it was not, after having been superseded by an amended complaint, admissible against him for any purpose, except upon the mere fact of its existence. J. De La Motte, of Duluth, for appellant.

Baldwin & Baldwin, of Duluth, for respondent.

PHILIP E. BROWN, J.

The plaintiff brought an action against the defendant and the Adriatic Mining Company jointly to recover damages alleged to have been sustained from a forest fire set by them, and which burned over and injured his farm and personal property. This defendant having demurred on the ground of the improper uniting of causes of action, the plaintiff dismissed the action against the Mining Company, and charged the defendant with sole accountability for his loss by an amended complaint interposed by leave of court. The defendant then answered, denying responsibility for the fire, and affirmatively alleged that the plaintiff had claimed that the Mining Company had set the fire, and, further, that subsequently to his loss he had adjusted and compromised his claim for damages for a valuable consideration with the Mining Company. Issue was joined on these claims by reply. The jury before whom the case was tried returned a verdict for the defendant. The court having denied the plaintiff's motion for judgment notwithstanding the verdict or for a new trial, he appealed from the order. The case comes here on a bill of exceptions.

The plaintiff insisted on the trial, introducing sufficient evidence to require the submission of such claim to the jury, that on June 9, 1910, fire escaping from one of the defendant's locomotives on its spur track started a conflagration at a point about two miles west of its main line, which burned from there easterly, crossing the defendant's main line and extending to and destroying the plaintiff's property, some ten miles distant, on the 18th of the same month. Concededly this fire could not have reached the plaintiff's land without crossing the defendant's main line near Mesaba Station between mileposts 77 and 78. The plaintiff offered sufficient evidence, if believed by the jury, to require a finding that the fire which destroyed his property crossed the track at the place indicated on or about June 13th. The defendant denied that it set the fire mentioned, or that any fire originated by it damaged the plaintiff, and, while admitting that a fire did cross its main line at the point mentioned, claimed that this occurred on June 20th, two days after the plaintiff's loss, and further denied that any fire crossed its track at any other time.

From the facts stated it will be observed that the sharp issue-the one upon which the verdict of the jury no doubt hinged-was as to the date on which the fire crossed the track. To support its claims in this regard, the defendant called one of its locomotive engineers as a witness, and proved by him that in June, 1910, he was driving a locomotive on the defendant's main line between Duluth and Ely, Mesaba being an intermediate station thereon; that he did not go through any fire crossing the track at the point mentioned, near Mesaba, but that when running his engine south, in the morning, he observed a fire about one-half mile distant from the point referred to, approaching the track. He further testified, in substance, that when he arrived at Duluth, hearing people talking about the fire and he being interested because it was a large fire, he made inquiries himself, and on the same evening obtained a newspaper, the Evening Herald, and read an item therein concerning the fire; that the next time he went north after reading the item was on the morning of the 21st, the next day, but that before going he read another item in a newspaper, the Duluth News-Tribune, on the same subject; and that when he went north the same morning the fire, coming from the west, had crossed the track near Mesaba, near where he had seen it approaching on the previous morning and gone, there being a little smouldering fire left. The witness having identified both of the newspaper articles referred to, the defendant's counsel offered the first in evidence, together with the name of the paper and the day and date of issue. This was objected to as incompetent, irrelevant, and immaterial, and no proper foundation laid, and hearsay. The court overruled the objection, and the following was read to the jury: ‘The Duluth Herald, Monday Evening, June 20th, 1910. Railroad Bridge Burning. Two Harbors, Minn., June 20. (Special to the Herald.) Fires are bad along Duluth & Iron Range main line. The Mesaba Bridge is burning. Men are watching the fires to prevent further spreading.’ Thereafter the defendant offered the item in the News-Tribune, and subsequently the same proceedings occurred, except that in response to a question asked of the court by the plaintiff's counsel, ‘What the purpose of the offer is, what is it intended to prove? Is it intended for the purpose of refreshing the witness' recollection? Is it intended for the purpose of proving a fact in issue?’ The court replied, ‘Proof of date,’ and after the plaintiff's counsel had interposed his objections at length, fully advising the court of his point, the court observed: ‘Well, do you stipulate that, subject to your objection, the article to which you refer is found in a paper of a certain date? If you care to do that, the matter may be excluded, but the matter is offered in connection with the date, to prove the date.’

Thereupon the objections were overruled, and the following proceedings, as shown by the record, occurred, together with others here immaterial:

‘Mr. De La Motte (Plaintiff's Counsel): Now may I ask the court what is the theory of the admission of this exhibit?

‘The Court: It is admitted for the purpose of proving the date.

‘Mr. De La Motte: Proving the date?

‘The Court: Yes.

Mr. De La Motte: And not for the purpose of proving the fact that is set forth in the article?

‘The Court: Well, the facts set forth in the article are those things which fix in the mind of the witness the particular paper which he read and enables him to identify it as the paper of that date.’

The court then, in answer to further detailed objections by plaintiff's counsel, said:

‘The matter is not received as evidence of the facts therein set forth. We do not care where this matter came from or whether it is authentic or not. * * * It is that he saw something which arrested his attention, and he surely saw it on that date. He can't tell us the date, except by again referring to that paper wherein he saw that statement or that announcement.

‘Mr. De La Motte: That may be true, your honor, with reference to the fixing of the time, but here is something more than time. Of course, if the court will instruct the jury that this article in the paper is not to be taken into consideration by them as establishing the fact, if it can perform that office with the jury and take from their minds something that they have seen in this paper, why then it would seem that it would not do any harm.

‘The Court: The court has made that statement in the presence of the jury, and they are instructed in accordance therewith.’

The article from the Tribune was then read to the jury, as follows: ‘Tuesday. The Duluth News-Tribune. June 21, 1910. Railroad property threatened by fire. Range Bureau of the News-Tribune. Two Harbors, June 20. The Duluth & Iron Range Railway Company today sent a locomotive equipped with apparatus to fight fire to the 77 mile post, to protect the bridges and station houses in that vicinity. The forest fires have been raging in this region for some time and the danger is increasing.’

The defendant called as a witness one of its servants, who testified that he was the station agent and operator at Mesaba in June, 1910, and remembered that a fire crossed the tracks a little north of the station, at the culvert between mileposts 77 and 78, during that month; that he saw the fire from the station, but had no independent recollection of the date of the occurrence; that he kept a record of the telegrams sent by him to the defendant in a book called ‘agent's message book,’ and that by referring to the messages therein regarding the fire he could tell the date when the fire crossed the tracks near Mesaba. He identified the book, and testified that the messages were sent on the date designated therein, and the book was offered in evidence, with special reference to the telegrams mentioned. The plaintiff objected to this as incompetent, irrelevant, hearsay, and a self-serving declaration. In the course of the discussion concerning the admissibility of the book and during the colloquy between the plaintiff's counsel and the court, the latter observed, among other things, that ‘the matter of the telegrams we care nothing about except to identify the date. We care nothing about the matter of the telegrams. It does not prove...