Wilson Bros. v. Mobile & O.R. Co.

• Decision Date: 22 December 1921
• Docket Number: 5 Div. 802.
• Parties: WILSON BROS. v. MOBILE & O. R. CO.
• Court: Alabama Supreme Court

92 So. 246

207 Ala. 171

WILSON BROS. v. MOBILE & O. R. CO.

5 Div. 802.

Supreme Court of Alabama

December 22, 1921

Rehearing Denied Jan. 19, 1922.

Appeal from Circuit Court, Chilton County; B. K. McMorris, Judge.

Action by Wilson Bros. against the Mobile & Ohio Railroad Company for damages for destruction of property by fire. Judgment for the defendant, and plaintiffs appeal. Reversed and remanded.

Hill Hill, Whiting & Thomas, of Montgomery, and Grady Reynolds, of Clanton, for appellants.

Steiner Crum & Weil, of Montgomery, and F. Loyd Tate, of Wetumpka for appellee.

MILLER J.

J. P. and F. D. Wilson, partners under the firm name of Wilson Bros., sue the Mobile & Ohio Railroad Company for damages, averring that defendant negligently set fire to and destroyed, by sparks from its engine, a warehouse, millhouse, shop, and lot of hay, the property of plaintiffs.

The defendant pleaded the general issue. The jury found the issue in favor of the defendant. There was judgment thereon by the court, and from this the plaintiffs appeal.

The evidence of the plaintiffs tended to prove that the property described in the complaint belonged to them and its value, and that it was destroyed by fire caused by large sparks, of unusual size and in unusual quantities, from the engine of the defendant. The fire was observed shortly after the engine passed this property, which was located near defendant's track.

The defendant's evidence tended to prove that the fire was not discovered and the property burned until from one to two hours after the engine passed; that it was very dry; the engine was properly constructed, equipped, managed, and operated with proper spark arresters used on well-regulated railroads.

There was evidence indicating, if the sparks were as large as shown by testimony of witnesses of the appellants, then the engine or its sparks arresters would have to be defective to throw them out . Oscar Turner, a witness for the plaintiffs, testified that he was a railroad section man when this property was burned. He noticed sparks from this train falling all round him when it was a short distance from this property of plaintiffs. They were large sparks. It was a freight train. He had observed other trains passing this place at other times and about the time of this accident, and knew what sparks they usually threw out at this place. Then the court would not permit plaintiffs to ask witness this question, when it was objected to by defendant: "Was this throwing out more or less than the usual trains?" The witness was competent to testify. This called for whether the sparks thrown out by this engine were more or less than those thrown out usually by engines passing this same place. If the engine in question was throwing out more sparks or larger quantitites of sparks as it passed this place than other engines of defendant as they passed this place, under like conditions, this would give legitimate evidence for an inference that the engine in question was either defective or unskillfully operated, and tend to show negligence in the construction or operation of the engine. It is not clear from the evidence that the conditions were similar or the same as to the different engines. The conditions should be shown to be similar. If the court erred in not allowing the witness to answer the question, which we do not decide (L. & N. R. R. Co. v. Sherrill, 152 Ala. 213, 44 So. 631), L. & N. R. R. Co. v. Davis, 200 Ala. 219, 75 So. 977).

There was no evidence tending to prove that the size of the spark arrester was two feet or less in diameter. The evidence showed it was about four feet in diameter in this engine. Hypothetical questions should be based on evidence or the tendency of evidence in the case. When they are not, the court will not be put in error when the objections to such questions, even on cross-examination, are sustained. The court did not err in sustaining objections to these questions propounded connectedly to the expert witness on cross-examination in regard to the size of the spark arresters:

"Suppose you made it too small, what would be the result? If it was only two feet, what would be the result?"

See Barfield v. South Highlands Infirmary, 191 Ala. 553, head note 19, 68 So. 30, Ann. Cas. 1916C, 1097.

The rule was invoked requiring all of the witnesses to remain out of the courtroom during the examination of the witnesses. Without the knowledge and consent of defendant or its attorney six of the witnesses for defendant were in the courtroom and heard the witness of plaintiffs testify. They were expert witnesses; knew nothing of the actual facts of the fire or its occurrence or of the property burned. They were permitted, over objections of plaintiffs, to testify. This rested in the sound discretion of the trial court. The record does not show any fact indicating an abuse of that discretion to the injury of plaintiffs; and, as we see from the record that no circumstance indicating plaintiffs' cause was prejudiced thereby, we therefore find no error in the court's ruling.

The testimony of J. P. Wilson, one of the plaintiffs, placed the value of the buildings burned in June, 1920, at about $1,200 or $1,500. The court allowed defendant, over objection of plaintiffs, to introduce in evidence the assessment sheet of plaintiffs made out by J. P. Wilson in January, 1920, showing assessed value of all the buildings, including the burned buildings, at $240, which was 60 per cent. of $400. The testimony of this witness tends to prove that he fixed or participated and concurred in fixing the value of all of the buildings therein. He said in speaking of the assessment sheet:

"That the assessment sheet introduced in evidence covered just the storehouse and barn and millhouse, and he supposed that it was assessed at $240, as 60 per cent. of the assessed value, and that was the way he gave them in; that it was his best judgment that he swore to it; that that was his signature, and that was his best judgment as to the value, and that it was correct."

This tends to show that he fixed the value of all the buildings, including the burned buildings, at $400, or certainly participated and concurred therein; it tends to contradict his evidence as to the value of the buildings on direct examination; and for these reasons the court did not err in allowing it to be introduced in evidence. This tax sheet declaration as to the value of all the buildings, including the burned buildings, when made by a plaintiff under oath or made by the tax adjuster, with his approval, concurrence, and participation, is admissible as a declaration or admission by him, a party to the suit, and to contradict his testimony in chief as to value; but it is not conclusive; it is simply a circumstance to be considered by the jury with all the other evidence in reaching a correct conclusion as to the real value of the buildings burned. Birmingham Min. R. Co. v. Smith, 89 Ala. 305, 7 So. 634; Pratt Cons. Coal Co. v. Morton, 14 Ala. App. 194, 68 So. 1015, headnote 10.

There as evidence tending to prove that the map in evidence was a correct...