Mahaffey v. Lumber Co.

BRANNON, PRESIDENT : A former decision in this case reported in 61 W. Va. 571, will show the character of the ease. In that case a new trial was granted, and a verdict in the second trial was rendered in favor of the plaintiff for one thousand dollars. J. W. Mahaffey sued the J. L. Rumbarger Lumber Company for damage to him by the burning and injury to certain of his property from fire originating from an engine of the lumber company used on its railroad in removing lumber from its plant. The lumber company complains that the court refused to exclude testimony of-Mahaffey to the effect that engines used by the company set out fire, because of improper construction of equipment of engines. It is pointed out that such evidence was not admissible because the declaration did not specify that the fire came from [176] engines or want of spark arresters and other defects in the engines. It is said the declaration is too general without such specifications. No demurrer was entered; but it is said that this defect in the declaration forbids such evidence. The declaration charges that the defendant caused fire to originate on its premises by negligence, and negligently failed to fight its extension, and thus allowing it to reach the premises of MahafEey and destroy his property. An amended declaration alleged that the defendant, while engaged in moving timber from said tract of land, by its servants and employees, did so in such a manner as to negligently set fire to brush, logs, trees and timber on the land occupied by the defendant. Thus, we have the main fact charged, namely: that the defendant did negligently set fire to brush, logs, trees and timber on its premises, and did allow its spread to the land of the plaintiff. True, the declaration does not say that any engine or railroad was used by the plaintiff; but having charged the main or primary fact of the negligent start and extension of the fire, we think it was. admissible, as mere matter of evidence, to prove just how the-fire started, that is, from engines, and that such start of fire came from defects therein. When the primary fact of tort doing the damage is charged, that is enough. Mere evidence to prove-the primary fact need not be charged. Snyder v. Wheeling Elect. Co., 43 W. Va. 661; Bralley v. Railway Co., 66 Id. 462. The court allowed a witness to state that in the summer of 190'8 the lumber company had men to follow the engines to put out the fire that was frequently started by the engines. As" the-fire involved in this case took place in 1904-, it is said that it was improper to allow evidence tending to prove that the fire-came from the engines four years afterwards. Hannun v. Hill, 52 W. Va. 166. We have held in cases of personal injury, from defective machinery and the like, it cannot be proven that subsequent repairs were made, to establish defects at the time-of the injury. See Board v. Insurance Co., 65 W. Va. 248, sec. 5. Whilst we question the inadmissibilty of this evidence, we do not deem it sufficiently material to warrant us in reversing' the judgment after a second trial resulting in the same way. We-cannot see that it was controlling in the case. It was pointed out that the court erred in refusing to allow [177] a witness, Otis Font, to give evidence tending to show that four years after the fire the sugar orchard, claimed to have been injured, was in good condition and to prove its value, the plaintiff having given evidence that the orchard was greatly damaged. Now, Fout had just given answer to this question in part. He stated “the timber looked to be in fairly good condition. I call it good, because my attention was only called to one tree burned on the west side.” Thus, the defendant had the benefit of his evidence as to the condition of the orchard, and cannot specify error as to it. As to value at the time Fout examined it, that was not the question, and there is no error in excluding his evidence as to that. And moreover, Fout had' disabled himself as an expert by saying that he was not a good! judge of timber. We consider that there is no error in plaintiff’s instruction 1, as it is justified by the former decision, as also instruction 2 and instruction 3 and instruction 4. Instruction 5 is good! under the former decision in this case with the modification made in it on the second trial. We do not see any error in instruction 6. The principles involved in the instructions are covered by the fonner decision and they need not here be incorporated. Some of these instructions are said to assume facts, but we do not think them liable to this criticism, or that the jury could so construe them. There was a very considerable amount of evidence tending to sustain the plaintiff’s case. It is said that the verdict is not sustained by the evidence; but that is a jury question and we cannot affect the verdict, especially as the same conclusion has, been reached by two juries. Therefore, we affirm the judgment. Affirmed'..