Albert v. Northern Central Railway

Mr. Justice Paxson delivered the opinion of the court, The first five assignments of error raise substantially the same question and may be considered together. The evidence below established the fact that if the plaintiffs’ property was destroyed by fire communicated by defendant’s locomotives, it was done by engine No. 21 or engine No. 126,'and by no others. Hence it is entirely clear that evidence that other engines upon some other day threw out an unusual amount of large sparks and live coals was immaterial, and if received could only have confused, and might have misled the jury. Nor would it have been evidence to show that the spark-arresters on engines 21 and 126 were out of order. This point does not need elaboration, for it has been expressly ruled in Erie Railway Company v. Decker, 28 P. F. S. 293. Huyett v. The Philadelphia & Reading Railroad Company is not in point. There the evidence was that the plaintiff’s house was set on fire by sparks from some one or more of several engines passing by on that day and about the same hour. Sparks were seen flying from the engines to the distance of more than fifty yards, and fences and fields were set on fire iu several places about the same time. So, in Lehigh Valley R. R. Co. v. McKeen, 9 Norris 123, the allegation was that the fire was caused by engine No. 133, going northward, and the evidence in relation to the character of the sparks was limited to those thrown out by the engine in question on the day of the fire and for some time before. There was no error in admitting the evidence referred to iu the sixth assignment. The fact that the foliage and trees might have obstructed the view of the witness was a question for the jury, as affecting the value of his testimony; it did not bear upon its competency. Nor are we able to perceive any error m [322] the admission of the evidence referred to in the seventh assignment. It tended to contradict Isaac Albert as to the ownership of the property. It was some evidence, though not very strong or important. But it was competent. The remaining, assignments need not be discussed. In the answers to points and in his general charge to the jury the learned judge laid down the law accurately so far as it is developed by the assignments of error. Judgment affirmed.