Lemen v. Kansas City Southern Railroad

BROALDUS, P. J. This action' is for damages resulting from the destruction of plaintiff’s barn by fire alleged to have been started by one of defendant’s locomotives. The jury returned a verdict in favor of defendant but the court granted plaintiff a new trial on the ground that “the court erred in rejecting the offer by plaintiff to prove the report made by the conductor Gibson and the offer to prove the custom of trainmen to report fires.” The evidence of plaintiff tends to show that his barn which was in the country and near defendant’s railroad was destroyed by fire started by a spark from the engine of a passing freight train, while the evidence of defendant is opposed to the conclusion that the fire originated in that way. In support of his contention, plaintiff offered evidence to show that it was the custom of trainmen “to report mishaps and fires [514] set out by their traías to the nearest operator or station agent” and that pursuant to such custom the conductor of the train notified the agent at the next station: “Better send your section gang up the road, I think we set something on fire there; better send them as far as the bridge for it may be that.” The ruling of the court in sustaining'defendant’s objection to the admission of such evidence afforded the ground on which, afterward, the court sustained plaintiff’s motion for a new trial. The sole question before us is whether or not the report of the conductor made to defendant’s station agent fifteen minutes after the train passed the place of the fire is competent evidence in chief on the issue of the origin of the fire. Defendant argues that the report is hearsay; plaintiff, that it falls within an exception to the hearsay rule. Should we regard this report as a mere narrative of a past event made by an agent (the conductor) to his principal (the defendant), we would agree with counsel for defendant that it is pure hearsay and, therefore, not admissible in evidence. In such case, it could not be considered as a part of the res gésta-e nor as an admission against interest. • It could not be of the res gestae because it was not a spontaneous utterance made at the time of the happening of the event, but was a mere historical recital made after an opportunity for reflection had been afforded the narrator. [Wigmore on Evidence, secs. 1747, 1749, 1750; Ruschenberg v. Railroad, 161 Mo. 70; Koenig v. Railroad, 173 Mo. 698; Redmon v. Railroad, 185 Mo. 1; Frye v. Railroad, 200 Mo. 377.] It could not be considered as an admission of the defendant since “the admission or declaration of his agent binds the principal only when it is made during the continuance of the agency in regard to the transaction then depending.” [Redmon v. Railroad, supra.] And the mere recital by an agent to his principal of “a mis [515] chief that is past and gone” has no evidentiary value in an issue between the principal and a third person. As to an issue of that character it is hearsay. But the vital fault of defendant’s position lies in the fact that the report in question cannot be regarded as an historical narrative but if the facts sought to be proved by plaintiff be true, must be held an act of the conductor performed in the line of duty in a transaction then depending. Defendant owed plaintiff the duty not to set out a fire that would burn his barn and if sparks from its locomotive started a fire which, if unchecked, would consume the barn, it was the duty of defendant to exert itself to prevent such injury. The conductor, in reporting the fire and in advising the station agent to send section men to fight it, was acting in the performance of a duty defendant owed plaintiff, and his report is evidence in the nature of an admission that the locomotive had started the fire. While the facts of the present case differ in some respects from those before the Supreme Court in Phillips v. Railroad, 211 Mo. 419, we think the rule of that case applies to this. ■ The court erred in excluding the evidence and was right in granting a new trial. The judgment is affirmed. All concur.