Knowlton v. Central of Georgia Railway Co. , 192 Ala. 456 ( 1915 )

SOMERVILLE, J.

(1) On direct examination, the owner of the burned buildings, who- was a witness for plaintiff, testified that a day or two before the fire he saw on the ground and picked up several burned matches, about three feet from the southwest corner of the building which first caught, and which was farthest from the railroad. The witness had testified that he thought the fire was of incendiary origin. On redirect examination the court sustained defendant’s objection to plaintiff’s question: “Was that fire hot enough to have burned up matches in three feet of it?”

In view of the fact that the matches were very small in size, and lying flat upon the ground, and that the wind blew the fire and, to some extent, the heat in an opposite direction, we do not think the witness was qualified to say that the matches would have been entirely consumed by the heat from the building. His answer would have been a mere guess, which the jury could have made quite as well as the witness.

(2) Defendant’s witness Thompson, the engineer on its train, testified on the office and quality of spark arresters. He said:. “I don’t know Iioav large the meshes to one of the spark arresters ought to be when properly constructed. It is between three-sixteenths and one-fourth of an inch. The sparks on my engine could not be very large; whatever size could get through the mesh— about the size of the end of a cedar pencil.”

Plaintiff asked him, if the spark arresters were in proper condition, could a spark get tbirough that could be thrown 60 yards, and be seen on the ground for that distance. It does not appear that the witness was any more capable than the jury of drawing the inference called for, at least as to the visibility of the spark.

(3) Moreover, the question was hypothesized, and there was no evidence that either of the engines that might have thrown sparks causing the fire had in fact at any time thrown such a spark as was hypothesized. The question was properly rejected.

(4, 5) Plaintiff’s question to this witness: “If she would throw out a piece of fire as big as a marble 60 yards, would that indicate that there wasn’t any netting in there?” was also objectionable as being based upon an abstract hypothesis, and also because the size of “a marble” is too indefinite to be the basis of a relevant conclusion. So far as the right to test the knowledge and credibility of the witness on cross-examination is concerned, this witness had professed no knowledge on this subject, and the discretion of the court in this behalf was not abused. The undisputed evidence was that these engines were equipped with spark arresters of meshed netting, and the twin question, “What size cinders would she have thrown out to indicate that there was no netting at all?” was collateral to the issue, and, for the reasons above stated, was not essential to the proper cross-examination of the witness.

(6) Plaintiff also asked this witness, “How far from a railroad will an engine properly equipped set a house afire?” and “How far do you think ordinary sparks could be blown, coming out of an engine well equipped?” Although, upon defendant’s objection, these questions were excluded, the bill of exceptions shows that the witness answered both of them to the extent of his knowledge, and no prejudice is apparent. The first of these questions was, of course, flagrantly objectionable.

(7, 8) The trial court allowed the fireman who was serving on one of the suspected engines, and who had seven years’ experience as such, to testify that, when approaching and passing these buildings on this occasion, the engineer was “very careful in handling the engine.”

When the merit or quality of conduct is not within the ordinary cognizance of the jury, an expert witness is allowed to say whether, in his opinion, specified conduct was or was not careful, proper, or suitable. — Cohn v. Robbins, 159 Ala. 289, 194, 48 South. 853; Weaver v. Ala. Coal Min. Co., 35 Ala. 176. But the facts or circumstances of the conduct in question ought to be first stated by a witness who has observed it, as a basis for his opinion. — B. R. & E. Co. v. Baylor, 101 Ala. 488, 13 South. 793; Eureka Co. v. Bass, 81 Ala. 200, 8 South. 216, 60 Am. Rep 152. This rule was not observed in the instant case; but the prejudice that might thereby have resulted to plaintiff was removed, and, indeed, the rule of exclusion was fully met, by the cross-examination of the witness, whereby the basis of his opinion was fully exposed to the jury.

The evidence showed very clearly that the only engines which might have caused this fire were numbered 1326 and 1624. One Leman, defendant’s boiler inspector, who examined a number of engines, testified that he examined both of these just after the fire, and found them properly equipped with spark arresters.

(9) On cross-examination the court excluded plaintiff’s question: “On the 18th did you find anything wrong with any spark arrester on any of these engines that came in from Birmingham?” This question was too broad under the issues as framed, and does not come within the rule of admissibility, as stated in the case of Southern Railway Co., v. Stonewall Insurance Co., 177 Ala. 327, 58 South. 313, Am. Cas. 1915A, 987.

(10) If there was error in excluding the question to this witness as to whether he knew “when an engine is properly equipped to prevent throwing out sparks and firing property along the road,” which we need decide, it was cured by his answer to other similar questions, affirming his knowledge of proper equipment, and denying his knowledge of its effect upon sparks as to the distance they might be throAvn, and their ignition of property along the road. It does not appear that the Avitness Wright testified that “the master mechanic’s front was recommended by the master mechanic’s association,” although several other witnesses had done so without objection by defendant; and the motion to exclude such testimony was therefore inapt. Moreover, such testimony was cleaidy relevant, and no ground of objection ivas ■specified.

(11) Defendant’s question to the witness Pendergrast as to whether an engine can be so operated as to lower the liability to set fire to “a bale of cotton on the platform” was not within the issues of this case, and was jproperly excluded. It appears, however, that the question was specifically answered by the witness.

(12) We find no prejudicial error in any of the rulings of the trial court; and it is pertinent to observe that we find no evidence in the record, other than the -proximity of these houses to the railroad, which even tends to establish a causal connection between their destruction by fire and the operation of defendant’s .road. Indeed, all the circumstances, so far as shown, tend strongly to the contrary. Such evidence would not .support a verdict for plaintiff. — Deason v. A. G. S. R. R. Co., 186 Ala. 100, 65 South. 172. Let the judgment be affirmed.

Affirmed.

Anderson, C. J., and Mayfield and Thomas, JJ., concur.