Union Pac. R. Co. v. Perrine

• Decision Date: 15 July 1920
• Docket Number: 5515.
• Citation: 267 F. 657
• Parties: UNION PAC. R. CO. v. PERRINE.
• Court: U.S. Court of Appeals — Eighth Circuit

267 F. 657

UNION PAC. R. CO. v. PERRINE.

No. 5515.

United States Court of Appeals, Eighth Circuit.

July 15, 1920

C. A Magaw, of Omaha, Neb. (N. H. Loomis, Edson Rich, and T. W Bockes, all of Omaha, Neb., on the brief), for plaintiff in error.

Thomas M. Morrow, of Scotts Bluff, Neb. (William Morrow, of Scotts Bluff, Neb., on the brief), for defendant in error.

Before SANBORN and CARLAND, Circuit Judges, and TRIEBER, District judge.

SANBORN Circuit Judge.

The Union Pacific Railroad Company complains of alleged errors in the trial of this action, which E. Leon Perrine brought against it for alleged negligence in the construction maintenance, and operation of one of its locomotives over its railroad, whereby, as he alleged, sparks from which were permitted and caused to escape and set fires, which on April 9, 1917, burned up 1,000 tons of alfalfa hay, a stack cover and a hay carrier, which he owned and which lay alongside the north line of the right of way of the company at Elm Creek, in Nebraska, to his damage in the sum of $24,148.29. The company denied the negligence. There was a trial, a verdict, and a judgment against the company for $14,758.74.

One of the principal issues at the trial was the value at the time of the fire of the alfalfa hay burned, and the company insists that there was prejudicial error in the admission of the testimony of Perrine and Reeves as to the market price and market value of hay at Kansas City at that time. There was substantial evidence at the trial that Elm Creek is in a country which produced large quantities of alfalfa hay in excess of the amounts there consumed; that the plaintiff was engaged in grinding this hay into alfalfa meal, and for that purpose had placed his mill and accumulated and stacked a large amount of this hay along the north side of the company's right of way; that this hay had been purchased by him under contracts with the producers made during the preceding nine months; that the cost of this hay to Mr. Perrine was about $10.25 per ton; that when it had been burned in the spring of 1917 surplus alfalfa hay was not abundant in the country in the immediate vicinity of Elm Creek; that there was no established open market for it there; that the nearest open market was at Kansas City; that the freight rate between Kansas City and Elm Creek was $3 per ton, the cost of baling $1.75 to $2.25 per ton, and the cost of loading 50 to 70 cents per ton.

Mr. Reeves, a witness for Mr. Perrine, testified that he believed he bought for Mr. Perrine all the hay that was burned; that this hay, which was in stack at Elm Creek, which was burned, cost around $10.25 per ton; that hay to replace it could not be bought in the vicinity of Elm Creek; that the hay burned was reasonably worth $24 per ton at Elm Creek on April 9, 1917, when the hay was destroyed; that the market price of No. 1 alfalfa hay at Kansas City on that day was $24. On cross-examination he was asked when he was in Kansas City, and he answered that he was there in the fall before the fire. Asked how he knew then, or who told him, what the market price of hay was in Kansas City, and other similar questions, he testified that he got his information from the weighing scales office in Kansas City, when he went in there the other day. He was testifying on June 15 or 16, 1919, so that 'the other day' was probably more than two years after the fire. Asked specifically who told him that hay was worth $24 per ton at Kansas City on April 9, 1917, he answered that he saw it without being told there in the office of the weighing scales. Asked, 'All you know about the market price of hay is what you saw on some bulletin at some scales; is that right? ' He replied, 'That is apparently right.' Thereupon counsel for the defendant moved to strike out the testimony of this witness in regard to the market price of hay as being hearsay and not the best evidence. The court overruled the motion, the defendant excepted, and the witness on his redirect examination went on to testify that Kansas City or St. Louis set the market price for hay.

Mr. Perrine testified that the Kansas City market on No. 1 alfalfa, shown by actual sales on April 9, 1917, was $24 per ton. Asked how he knew what the market price was there on that day, this colloquy followed:

'A. Because I looked up the records, the original records, on that.

'Q. Because you looked at some records, and what somebody told you about it? A. The record is the best evidence in the world.

'Q. Well, just answer my question. A. I looked at the records and know from that.

'Mr. Magaw: We now move to strike out the testimony of the witness as to value in Kansas City, for the reason that it is based on hearsay and is not the best evidence.

'The Court: Objection overruled. My understanding of the law is that one who examines the record may testify as to its contents.

'Mr. Magaw: We renew the objection on the ground that it

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