St. Louis, Iron Mountain & Southern Railway Co. v. Faisst

• Decision Date: 01 December 1900
• Citation: 61 S.W. 374,68 Ark. 587
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. FAISST
• Court: Arkansas Supreme Court

61 S.W. 374

68 Ark. 587

ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. FAISST

Supreme Court of Arkansas

December 1, 1900

Appeal from Saline Circuit Court, ALEXANDER M. DUFFIE, Judge.

Judgment reversed and cause remanded.

Dodge & Johnson, for appellants.

The burden of proof is upon plaintiff to show negligence. 2 Shear. & R. Neg. § 676; 49 Ark. 535; 33 Ark. 816; 59 Ark. 112; 30 Wis. 55; 75 Vt. 499; 54 Pa.St. 345; 52 Pa.St 379; 43 S.W. 431; 37 S.W. 779. It was a sufficient defense to show that the spark arresters were in good order. 29 S.W 860; 31 S.W. 319; 3 Elliott, Railroads § 1245; 29 S.W 860; 91 Wis. 447; Wood, Ry. Law, 1576-1581. The defense was complete, in the absence of proof contradicting it.60 F. 39. The fire was not the result of negligence.141 Ind. 661;25 S.W. 971; 31 S.W. 319; 143 N.Y. 187;43 N.Y. 123.A railway company is only required to use such contrivances as have already been tested and put in use. Pierce, Railroads, § 433; note 4; 50 P. 456. It was error to permit the jury to pass upon the question as to proper equipment and condition. 33 Wis. 582; 34 Wis. 315; 54 Wis. 619; 55 Wis. 106; 33 Ill.App. 565; 101 Ga. 747; 38 S.E. 710. Unimpeached evidence cannot be arbitrarily disregarded. 51 S.W. 319; 3 N.D. 17. Uncontradicted proof that all possible precautions were taken to avoid the injury exonerates the defendant from liability. 21 Fla. 669; 74 Ala. 150; Ib. 113; 59 Miss. 280; 85 Ala. 208; 83 Ga. 9; 78 Ga. 714. The burden was upon the plaintiffs to show by a preponderance of evidence that the fire originated with the defendant's locomotive. 109 Ala. 509; 65 Minn. 112; 94 Wis. 270; 29 Barb. 226; 86 Wis. 466; 9 Nev. 296; 45 Mo. 327; 13 Am. & Eng. R. Cas. 487; 56 Ark. 520. If probabilities are evenly balanced, the plaintiff cannot recover. 99 Mass. 605; Will's Circ. Ev. 158; 50 N.W. 365; 74 N.W. 561; 91 Ky. 526; 101 N.Y. 661; 128 N.Y. 107. Plaintiff must show by a reasonable evidence that the fire originated from defendant's locomotive. 10 Am. & Eng. R. Cas. (N. S.) 160; 75 N.W. 1114; 14 Am. & Eng. R. Cas. (N. S.) 82. The affidavits of witnesses Ulmer, Hendricks and Finley should have been admitted in evidence. Sand. &. H. Dig., § 2959; 30 S.W. 856; 151 U.S. 154; 53 F. 1001.

J. W. Westbrook. D. M. Cloud, Murphy & Mehaffey, for appellees.

Uncertain circumstantial evidence is sufficient in civil cases. 1 Greenl. Ev. 23. The verdict is conclusive upon the question of negligence. 49 Ark. 535; 63 Ark. 636; 178 Pa.St. 367; 34 L.R.A. 577; 17 L.R.A. 33; 9 L.R.A. 824. Where all possible precautions are taken to avoid injury, the defendant is not exonerated from liability. 25 L.R.A. 161. The failure of the watchman to discover the fire does not excuse the appellant. 55 Ark. 163; 17 L.R.A. 33.

Dodge & Johnson, for appellant, in reply.

When contradictory statements are offered for the purpose of impeaching a witness, the proper foundation should be laid on cross-examination. 24 S.W. 518; 34 Ia. 533; 19 Ia. 448. The foundation having been laid, it is competent to impeach a witness by putting in evidence any material statement in contradiction of his testimony, which may have been reduced to writing by him or subscribed by him. 10 Enc. Pl. & Pr., § 291. Our statute is but an adoption of the common-law rule. 1 Greenl. Ev., § 462; Sand. & H. Dig., § 462. The statements should have been admitted as proof of the cross-examinations of witnesses who signed them. 1 Greenl. Ev. § 462; 53 Minn. 539; 79 Cal. 452; 133 Mo. 5, 6; 146 Mass. 607; 53 F. 1005; 76 F. 254; 96 Mo. 85.

Murphy & Mehaffey, for appellees, in reply.

It is not error to exclude the affidavits or statements in writing at the time the same were offered in evidence.1 Greenl. Ev. § 463; Phill. Ev. (4th Am. Ed.) 964; 8 Enc.Pl. & Pr., 217-218, note 1, 236; 17 So. 187; 48 Ark. 182;15 Ark. 348; 3 Enc. Pl. & Pr. 428. Every presumption is in favor of the correctness of the court's ruling. 2 Enc.P1. & Pr. 418-20-21, 444-475; 3 Enc. Pl. & Pr. 409-14. If the error consists in the admission or rejection of evidence, such evidence must be set out in the bill of exceptions. 2 Enc. Pl. & Pr., 475-6, and note 1, 477; 8 Enc. Pl. and Pr., 217-18, note 1, 220-23; 3 Enc. Pl. & Pr., 427, and note 2; also note on 428; 52 N.W. 283; 49 N.W. 1066; 24 S.W. 518.

Dodge & Johnson, for appellants; additional reply.

A presumption should always be based upon a fact, and should be a reasonable deduction from such fact. The law does not allow presumptions of fact from presumptions.92 Pa. St. 431; 29 Barb. 226; 86 Wis. 446; 9 N.W. 296;45 Mo. 327; 13 Am. & Eng. R. Cas. 487. The appellant's showing of proper equipment and proper handling of its locomotive is conclusive against is liability for the injury. 178 Pa. 367; 17 L.R.A. 33; 9 L.R.A. 824.

WOOD J. BATTLE and RIDDICK, JJ., dissent.

OPINION

WOOD, J.

This suit was brought by B. Faisst & Co., a firm composed of B. Faisst and others, to recover damages for the burning of a mill and other property, alleged to have been negligently caused by sparks from an engine of the railway company. There was a judgment in favor of plaintiff for $ 17,622.25, from which this appeal was taken.

On the trial witness Ulmer testified, among other things, "that he saw the passenger train go north, and that it was throwing fire, as they usually do, and it was all going over towards the mill. The air was carrying it from the track towards the mill. The train was throwing fire enough to set anything afire, like they do in the day time. The sparks looked to be as big as the end of your finger." On the cross-examination of this witness he was shown an affidavit, and the record as to what took place concerning it is as follows:

"Q. Is that your signature? A. Yes, sir. Q. You signed that, did'nt you? A. Yes, sir. Q. You swore to it before Mr. Mashburn, notary public, did'nt you? A. Yes, sir. Q. Did'nt you state in that connection, 'I didn't see any sparks flying from the engine?' A. No, sir; I did not. Q. You signed that statement, didn't you? A. No, sir; I didn't know about that. Q. You signed that? A. Yes, sir. Q. Was that read to you when you signed it? A. The man that wrote that out read it to me; I couldn't read it. Q. He read it to you? A. I didn't tell him, though, that I didn't see no sparks. Q. You saw that statement, 'I saw no sparks flying from the engine?' A. No, sir; I did'nt tell him any such thing. Q. It is there, isn't it? Can you read? A. No, sir; I didn't say any such thing at all. Q. This statement was taken down, or at least a statement was taken down and read over to you, and you signed it? A. He read it over, but I know that wasn't in it when he read it over. I know that much. Q. Did you know you signed that statement? A. Yes, sir; that is my hand-write. Q. Did you sign it before notary public Mashburn? A. No, sir; I signed it in the depot. Q. Didn't you swear to it? A. Yes, sir. Q. Did you go before him and swear to it? A. Yes, sir."

Witness Hendricks testified, among other things, that he was awake when the passenger train came north, and noticed the sparks being thrown out from the locomotive as it passed. They were of unusual size, and seemed to be a great many. He did not notice any fire at the mill before the passing of the train; noticed the fire sometime near two o'clock, after the passenger train had gone north. The record shows the witness was asked this question, to-wit: "Well, when you noticed the mill burning, what portion of it was burning?" The answer was as follows, to-wit: "The west end; what I call from where I live the west end of the main lumber shed. It had burned the entire west end of the main lumber shed. This was afire, and had burned to half way up the east end." On cross-examination of this witness the record shows the following: "Q. Didn't you state to Mr. Faulkinbury, when he took your statement, that the first you knew of that fire the whole west end of the mill was afire? A. No, sir. Q. You made a statement to him? A. Yes, sir. Q. You never said a word about these sparks from the engine at that time? A. He didn't ask me at that time. Q. You made nostatement about it? A. Yes, sir; I made a statement in regard to the sparks on the train. Q. You think now you made a statement to him? A. I know I did. Q. Didn't you state to him and wasn't that statement taken down in writing, that 'when I first discovered the fire, all of the west end of the mill was in flames, and it burned very rapidly all over the entire building; so fast nothing could be saved,' signed by G. T. Hendricks? Is that your signature? A. Yes, sir. Q. Didn't you make that statement? A. I did not. Q. Did you sign this? A. I did. Q. Was it read over to you? A. No, sir. Q. Did you ask it to be read over to you? A. No, sir. Q. Did he take the statements as you made them? A. He took it down as I made them."

Defendant here asked to be allowed to read to the jury those parts of the affidavits of A. B. Ulmer and G. T. Hendricks to which attention has been called, but the court refused to allow same to be read, to which refusal the defendant saved its exceptions.

Does the record raise the question as to whether or not the trial court erred in refusing to permit to be read to the jury those portions of the affidavits or written statements of witnesses Ulmer and Hendricks to which their attention had been called? Such question was treated as raised in the original brief of counsel for appellee. There is no intimation or suggestion there that the record does not properly raise the question. But, upon a careful reading of the transcript by one of the judges of this court, it was suggested that there might be some question as to whether the bill of exceptions really presented the alleged error of the ruling of the court below in rejecting the parts of the...