Snow Lumber Co. v. Atlantic Coast Line R. Co.
| Decision Date | 27 October 1909 |
| Parties | SNOW LUMBER CO. v. ATLANTIC COAST LINE R. CO. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Sampson County; W. R. Allen, Judge.
Action by the Snow Lumber Company against the Atlantic Coast Line Railroad Company. Judgment for plaintiff, and defendant appeals. No error.
To permit of a witness testifying as an expert where objection is made, there must be either a finding by the court or an admission by the adverse party that witness is qualified.
The plaintiff sued to recover the value of a large amount of lumber, which was alleged to have been destroyed by fire negligently communicated to it by an engine, operated by the defendant on its branch line between Clinton and Warsaw, N.C. The defendant denied the negligent acts alleged against it. The particular negligence of the defendant alleged was the defective condition of the spark arrester on its engine. The following issues were submitted by his honor, and were answered as set out:
Upon the verdict judgment was rendered against the defendant, from which it appealed.
Davis & Davis and F. R. Cooper, for appellant.
H. A. Grady, Carter Dalton, and King & Kimball, for appellee.
The amount of lumber destroyed by the fire was nearly 700,000 feet. The plaintiff had it manufactured for market and had sold it, and its value at the place and time of destruction was $14.40 per 1,000 feet. The only seriously controverted question at the trial was whether the defendant's engine was the cause of the fire. There was upon this question much evidence, both for and against, and it presented simply a question of fact for the jury. It has been found adversely to the defendant; its determination was doubtful; the jury were the sole judges of the credibility of the witnesses, the weight to be given to their testimony, and the inferences of fact to be drawn therefrom. They were the triers of the fact, and their finding is necessarily conclusive upon us, unless it was induced by evidence improperly admitted or improperly excluded. His honor properly placed the burden of proof of each issue upon the plaintiff, and charged the jury that, before finding each affirmatively, they must be satisfied of the fact presented by the greater weight of the evidence.
The assignment of error most earnestly and with great learning and ability pressed upon our attention is taken to the exclusion of the following evidence: J. E. Huey, the engineer in charge of the engine alleged to have caused the fire, was offered by the defendant as a witness, and he testified, among other matters, as follows: Witness was then asked "if from his experience and knowledge of the facts, as they existed when train passed the mill, he could form an opinion satisfactory to himself as to how far a coal cinder or spark would float in the air, or be carried by the wind, and retain the power to ignite trash, shavings, or other combustible matter." Witness answered he could. Witness was then asked how far in his opinion a spark or cinder from the engine when it passed the mill could be carried. The answer to this question was upon objection excluded, and defendant excepted.
There was evidence offered showing that sparks in considerable volume escaped from the smokestack of the engine in use on the evening the plaintiff's property was destroyed and were thrown from 35 to 40 feet high, and were of the size of the fingernail of a man; that this was observed as the engine passed a shanty near the burned lumber; that fire had been communicated by this engine on the day before to property along the track as far as from 60 to 125 feet; that at least three fires had on that day and the day before originated from sparks from this engine near plaintiff's mill; that the season was dry, and on the night in question a wind was blowing; that on the day of the fire plaintiff had shut down its plant, one boiler at 12:30, the other at 3 p. m., and the fires had been raked into pits and water poured on them; that men had been at work around the plant during the afternoon until dark, and no fire had been seen in the boiler pits or in the lumber; that there was fire in what was called slab pits or trash piles, but there was some difference of opinion as to its condition, some of the witnesses stating that there were only coals in them, others that the fire was blazing; that one of these pits was north and the other west of the place where the fire caught; that the wind was blowing from west of south to east of north; that the fire caught between two piles of lumber at a distance from the railroad track estimated from 108 feet to 180 feet; that the fire was discovered between a half hour and an hour after the train passed at 7 p. m. The grounds upon which this evidence of the witness Huey was excluded are not stated. If he was offered as an expert, then, upon objection, the preliminary question of his qualification as an expert ought to have been found by his honor at defendant's request. No request for a finding by his honor upon this question appears from the record to have been made. The burden being upon the appellant to show prejudicial error, we cannot assume that his honor in this view found the witness to be an expert, and then excluded the question and answer. In order that the witness might testify as an expert, when objection is made, there must be either a finding by the court or an admission or waiver by the adverse party that the witness was so qualified. Neither appears in this record. This being an appellate court for the review of errors, the appellant must show, where evidence is excluded, not only that the witness was found qualified to...
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