Norwich Ins. Society v. Oregon Railroad

Mr. Justice Wolverton delivered the opinion. This action is to recover damages for loss occasioned by fire alleged to have been caused by the negligent operation and management of a freight train and certain engines used for propelling it. The plaintiff recovered judgment, and the defendant appeals. The errors assigned for reversal arise upon the direction of the — 130 — court in taking an item of evidence from the jury, and upon certain instructions given on the submission of the case. 1. J. F. Graham, a witness for the defendant, testified that he was a master mechanic; that he had had many years of experience with various railroad companies in the motive power and car department, and had been for nine years in charge of the defendant’s rolling stock; that he knew of no appliance that would entirely prevent the escape of sparks from locomotives; that the Master Mechanics’ Association was an aggregation of master mechanics throughout the country, which met once a year; that all railroads in the country were represented at their annual meetings, at which different questions pertaining to locomotive construction were discussed; that the appliance for preventing the escape of sparks from locomotive stacks, known as the extension front end, in general use all over the country, was adopted by the railroads in general, and by the Master Mechanics’ Association. Whereupon the following question was put to him, namely: “They (the Master Mechanics’ Association) recommended the extension front end ?” To which he answered: “Yes, sir.” On motion of plaintiff’s counsel, this answer was withdrawn from the jury, and the defendant predicates error upon the action of the court in that regard. It is insisted that this matter was pertinent to show that defendant had exercised due and reasonable care in selecting and adopting the most approved appliance in modern use for the prevention of the escape of sparks from its locomotives. This may be conceded. It is next argued that parol evidence is admissible to show the action of the association in making the recommendation. It is so familiar to those who have any knowledge at all of the manner of conducting the meetings of such associations, and the business transacted thereat, that minutes or records of the proceedings are kept, that it must be taken judicially to be the general rule and practice. 2. These minutes or records constitute, of course, primary evidence of what was done; and, in so far at least as they affect third parties — those not participating in or connected with the association or the business transacted by it — the better reason — 131 — would suggest that the best evidence should be produced, or, as is usual in other eases, its absence accounted for before admitting parol evidence of their contents, or it be shown that no minutes were kept before resorting to parol to show what was done. These observations would have no application, of course, where it was sought to impeach the record, for in such a ease parol evidence is always permitted to show what was actually done. The objection to the admission of the parol statement was based upon the ground that it was not the best evidence, as well as upon its immateriality and irrelevancy, and, as the absence of the record or minutes of the association showing the recommendation was not accounted for, we think the statement of the witness was properly taken from the jury. 3. 'But however this may be, if we concede that there was error in withdrawing this particular proof, it would hurt so little that it would be scarcely perceptible, because the witness had previously testified that this arrester had been adopted by the railroads in general, and by this association, and, when it was asked if the assocation recommended the patent, the court said it could not permit the proof in that way; but proof in fully as strong, if not a stronger, form was already before the jury without objection. The error, therefore, is not well assigned. 4. The next assignment is based upon the ninth paragraph of the court’s charge to the jury, which is as follows: “It is not necessary that any specific act of negligence be pointed out, if the circumstances established are such as a jury may infer negligence from, such as running at a high rate of speed, working the engine hard, overloading it, and other acts indicating an unusual course in operating the engine — are things the jury may consider in determining whether or not the defendant was guilty of negligence.” An objection to the instruction is that it assumes a fact touching which there was no evidence tending to establish, namely, the running of the train at a high rate of speed. This, we are satisfied, mistakes the intendment of the court. The purpose is manifest not to charge the jury as though the running of the train at a high rate of speed was a fact in evidence, or as if there was evidence tending to prove the fact, but the expression was — 132 — employed as illustrative, merely, to indicate the manner and nature of the acts from which the jury might infer negligence in the absence of proof of any specific acts which in themselves would constitute negligence. In other words, the court instructed that direct proof of the identical act or acts of negligence that permitted the escape of fire and its communication to the building was not necessary, but, when it is seen that the fire was the result of the operation of the train, then that the jury may infer negligence, in the absence of any direct proof of the kind suggested, from any acts of the company’s agents or employees indicating an unusual course, and calculated to contribute to the result. Then, as illustrative of such acts as may be so considered, the court enumerates, among others, the running of the train at a high rate of speed, not that they had a right to consider the fact as one attempted to be shown, and, if found to be true, that it would constitute a circumstance from which they could infer negligence. In this view, the instruction was not misleading, and therefore not error. 5. We may say in this connection that whether the fact of running a train at a high rate of speed is ah act of negligence depends always upon the circumstances, environments, and conditions under which it is being so propelled. A case is hardly conceivable where it would be proper for the court to say that the running of a train at a high rate of speed is per se negligence, or within itself negligence as a matter of law; but, when connected with the environments, such as passing through a populous city, or in proximity to buildings highly inflammable, especially when used in connection with the operation of the road, and under conditions that cause the engines to labor excessively, and thereby emit unusual quantities of sparks and fire, it might constitute an act from which the jury could very properly infer negligence in the absence of direct proof. This seems to be the doctrine of the texts and the eases cited: 2 Thompson, Negligence, § 1873; Perdue v. Louisville & N. R. Co. 100 Ala. 535 (14 South. 366); Gandy v. Ghicago & N. W. R. Co. 30 Iowa, 420 (6 Am. Rep. 682); Hagan v. Railroad Co. 86 Mich. 615 (49 N. W. 509); Brusberg v. Milwaukee, L. S. & W. Ry. Co. 50 — 133 — Wis. 231 (6 N. W. 821); Kansas City, Ft. S. etc., R. Co. v. Chamberlin, 61 Kan. 859 (60 Pac. 15). That the court’s instruction is readily susceptible of the construction we have given it is also inferable from other instructions in connection with which it must be read, notably the fourth, tenth, and nineteenth, and some others that follow. 6. The third and last assignment of error is predicated upon the twelfth paragraph of the charge. It is in language following: “You have a right to take into consideration every fact and circumstance which tends to demonstrate, subject to the explanation of the defendant, the kind of care and caution usually exercised by defendant’s employees in charge of the engine which is alleged to have set the fire,' and also the sufficiency of the equipments for preventing the escape of fire used by the defendant on this train in operating the same, and to judge as to the probable state of repair in which the engines which hauled this train were.” Two objections are noted and relied upon. The first, briefly stated, is that the instruction submitted to the jury an issue outside the pleadings; and the second, that, the engines doing the damage having been identified, it was not proper for the jury to consider what the employees may have done usually, as bearing upon or having anything to do with what they did at the time the fire was communicated. It is alleged that the engine “was unskillfully and improperly constructed, and improperly, carelessly, and negligently run and managed * * by said defendant, and by its agents^ servants, and employees, and, by reason of said * * improper, careless, and negligent management * * large quantities of sparks” “were emitted and ejected,” etc. This is manifestly broad enough to let in proof of the nature and character of the care and caution exercised by such servants and employees in conducting and managing the particular engine or engines alluded to, and involved in doing the damage, and whether or not they were negligent in the performance of their duties. There was no attempt to instruct, as it seems .to be inferred, that the jury might consider whether the company had employed unskillful agents and employees, or as to whether the employees were in fact unskillful, as contradistinguished from careless or incautious. The authorities cited, namely, Babcock — 134 — v. Chicago R. Co. 72 Iowa, 197 (28 N. W. 644, 33 N. W. 628), and Gulf, etc., R. Co. v. Johnson, 28 Tex. Civ. App. 395 (67 S. W. 182), go to that sort of case, but are without application here. The -objection is therefore untenable. 7. As to the second, it should be observed that the term “usually” was applied to the employees in charge of the particular engines in question/ not to the employees in general, or to those in charge of other engines; and the inference deducible from the instruction is that, if the employees in charge of this engine had usually been careless and incautious or negligent in running it, if the jury found such to be the case, they might reasonably conclude that they were negligent at this particular time; and in this interpretation there is no vice in the instruction, under whatever view we may take of the law as to whether it may be permitted to show generally that other engines had scattered fire at other times, or that other persons in charge of them were usually careless or negligent: Lesser Cotton Co. v. St. Louis 1. M. & S. R. Co. 114 Fed. 133 (52 C. C. A. 95). The judgment of the trial court should be affirmed, and it is so ordered. Affirmed.