Marron v. Great Northern Railway Co. , 46 Mont. 593 ( 1913 )

MR. JUSTICE HOLLOWAY

delivered the opinion of the court.

The complaint in this action states three causes of action for damages to property, occasioned by fires alleged to have been started by the defendant railway company along its Plentywood line of road, in Yalley county. It is alleged that the first fire occurred on September 18, 1910; the second on April 11, 1911; and the third on April 21, 1911. It is charged that these fires were caused by the negligence of the defendant company, and that certain stacks of hay, and the grass, pasturage and vegetation on plaintiif’s land were destroyed. The answer admits the defendant’s corporate existence and its operation of the Plenty-wood line of road, but denies all the other allegations of the complaint. The trial resulted in a verdict and judgment in favor of plaintiff, and it is from that judgment that this appeal is prosecuted.

1. Counsel for appellant insist that the trial court adopted an erroneous theory as to the measure of damages, and it is said that this is made apparent from the rulings admitting certain evidence, and the refusal to give certain instructions requested by the defendant.

(a) Specifications of errors 1, 3 and 6 relate to the admission of evidence to the effect “that by reason of the fire the land in question burned over, produced no crop to speak of in 1911; that the fire running over blue-joint hay land, such as this ‘injures the grass below the ground,’ and ‘it takes two or three years to get it in the same condition as it was before’; '* * * that ‘it damages the roots to a great extent, and it takes the meadow from two or three years to get back to its original thickness; if there is any bunches of hay left in taking the hay off that field, it just absolutely burns out that piece of ground so that it takes years to get back to its original thickness. ’ ” It is [1] insisted that injury to or destruction of the grass roots or sod of plaintiff’s blue-joint meadow constituted injury to the realty itself, and that the measure of damages for such injury is the diminished value of the realty occasioned by the fire. In support of this view numerous authorities are cited, including 3 Sedgwick on Damages, 9th ed., p. 1939; Thompson v. Chicago, B. & Q. Ry. Co., 84 Neb. 482,121 N. W. 447; Wiggins v. Railway Co., 119 Mo. App. 492, 95 S. W. 311; Terre Haute etc. Ry. Co. v. Walsh, 11 Ind. App. 13, 38 N. E. 534; Ward v. Railway Co., 61 Minn. 449, 63 N. W. 1104; Railway Co. v. Jagoe (Tex. Civ. App.), 32 S. W. 717; Missouri etc. Ry. Co. v. Malone (Tex. Civ. App.), 126 S. W. 936.

No fault is found with the rule just stated, but counsel for respondent contend that the evidence was properly admitted under that rule, for the purpose' of showing the extent and character of plaintiff’s injury, and with this we agree. If the fires did not cause any injury whatever, then the plaintiff’s case would fall of its own weight. This evidence tended to establish the fact that the inheritance itself sustained injury and the character and extent of that injury. There is hot any merit whatever in appellant’s contention; indeed, the very authorities cited by its counsel fully warrant the trial court’s action. (Railway Co. v. Jagoe; Terre Haute etc. Ry. Co. v. Walsh; Ward v. Railway Co., above.)

(b) Specification of error 2 has to do- with a question asked the respondent while a witness in his own behalf, as to the value of the crop of grass on his land in September, 1910, which was destroyed by the fire of September 18 of that year. There is [2] evidence in the record which tends to establish the fact that there was a growth of grass on the land at the time of the fire which had a separate and independent value of its own. In entire harmony with the 'rule stated above is the further rule that “if the thing destroyed, although it is a part of the realty, has a value which can be accurately ascertained without reference to the soil on which it stands or out of which it grows, the recovery must be for the value of the thing thus destroyed, not the difference in the value of the land before and after such destruction.” (Atlantic & B. Air Line Ry. Co. v. Brown, 158 Ala. 607, 48 South. 73; 4 Sutherland on Damages, 3d ed., 1023, 1049; St. Louis etc. R. Co. v. Noland, 75 Kan. 691, 90 Pac. 273.)

(c) Specifications 4, 5, 7 and 8 relate to rulings of the trial [3] court admitting opinion evidence as to the extent of plaintiff’s damage. The questions objected to were all preliminary ones — each question could have been answered yes or no — and .upon that ground alone the district court was justified in overruling the objections made. This court sits as .a court of review, and it is incumbent upon the appellant to show error prejudicial to its interests. If the trial court’s ruling is justified upon any ground, this court will not interfere.

(d) The court refused two instructions offered by the defendant, as follows:

“No. 3. You are instructed that the plaintiff is not entitled to recover in this action the value of any crop which he might have raised in 1911, upon any of the land burned over, referred to in the complaint.

“No. 4. You are instructed that the plaintiff is not entitled to recover in this action, for damage to the grass roots of the land burned over, referred to in the complaint..”

There was not any contention whatever that plaintiff was [4] entitled to recover the value of the crops which might have been raised during 1911, and for that reason instruction No. 3 was properly refused.

It is somewhat difficult to comprehend just what was meant by instruction No. 4. The court should have advised the jury as to the proper measure of plaintiff’s recovery and the elements which might be considered in arriving at the amount of his recovery; but there was not any request made for such an instruction.

2. Error is predicated upon the action of the trial court in excluding certain evidence. The defendant called Thomas Shea and A. H. Rollins, men employed by it in the shops at Willis-ton, and whose duties required them to inspect the ash-pans and spark-arresters on locomotives used on the Plentywood line at the time of the fire in September, 1910. When called to the stand as witnesses, at the trial of this cause, neither of these men retained any independent recollection of his work on the particular locomotive which caused the fire of September 18, [5] 1910. These men kept a record-book in which they made entries of every inspection, but neither was able by examining the record-book to refresh his memory. It was sought to have the witness Shea testify directly from the record-book, but upon an adverse ruling from the court, counsel for defendant company then offered in evidence the book itself, and this offer was refused. In their endeavor to show that the trial court erred, counsel for appellant cite many cases from other states, but without reference to the statutes, if any, under which they were decided. Happily we are not left in doubt upon the subject at all.

(a) Section 8020, Revised Codes, provides: “A witness is allowed to refresh his memory respecting a fact by anything written by himself or under his direction at the time when the fact occurred or immediately thereafter, or at any other time when the fact was fresh in his memory and he knew that the same was correctly stated in the writing. But in such case the writing must be produced and may be seen by the adverse party, who may, if he choose, cross-examine the witness upon, it, and may read it to the jury. So, also, a witness may testify from such a writing, though he retain no recollection of the particular facts, but such evidence must be received with caution. ’ ’

This section comprehends two classes of witnesses. The first class includes the witness whose memory can be refreshed by reference to the memoranda. The second class includes the witness who does not retain any recollection of the particular facts recorded in the memoranda even after he examines the entries which he made himself. The witness of the first class may refresh his memory, and, having done so, may then testify independently of the memoranda. The witness of the second class may testify directly from the memoranda. But before either one will be heard at all, these preliminary facts must be made to appear: (a) The entries must have been written by the witness himself or under his direction; (b) they must have been written at the time the facts occurred or at a time when the facts were fresh in the witness’ memory; and (c) the witness must have known at' the time the entries were made that they correctly stated the facts. Counsel for defendant failed to qualify the witness She'a under the rules just stated. He was not asked whether he knew at the time the entries were made in the record-book that the entries correctly stated the facts; and it is idle now to attempt to cure the oversight. The Code provision above is perfectly plain and its meaning is not open to doubt. Even though the trial court may have given a wrong reason for its ruling, so long as the ruling itself was correct it will not be disturbed.

(b) In those jurisdictions where the book containing the entries is admissible, it is required as a preliminary that the [6] correctness of the entries be made to appear, and if admissible here under preliminary proof of the facts required by section 8020 above, it is doubtful whether this offered proof would be admissible. But that in adopting the extremely liberal rules announced in section 8020 above, our legislature evinced an indention that the general rules of evidence under which such entries themselves are excluded should be observed here is obvious; otherwise the provisions of section 8020 are practically meaningless. The idea that the entries themselves may be introduced in evidence is negatived by the very liberal use to which they may be subjected in aid of witnesses. It will be noticed that upon cross-examination of the witness who made the entries, the entries may be read to the jury by the cross-examiner. If the entries themselves are admissible, all these provisions are meaningless. With great particularity the Code has indicated the use which may be made of a private writing such as the one considered in this case, and the courts are not authorized to enlarge these provisions. “In this state there is no common law in any case where the law is declared by the Code.” (Sec. 8060, Rev. Codes.) “The Code establishes the law of this state respecting the subjects to which it relates.” (Sec. 8061.) These provisions are conclusive upon the question now under consideration.

3. Finally it is urged that the evidence is insufficient to sustain the allegations of the third cause of action, that the fire [7] of April 21, 1911, was caused by the defendant’s locomotive. There is evidence to the effect that the plaintiff owned the west half of the northeast quarter of section 28, T. 35 N., R. 55 E., through which the defendant’s Plentywood line of road runs; that the same fire which burned over six acres of this ground on April 21, also burned a staek of hay 150 or 200 yards from the track. A witness, Ator, at Plentywood, a mile and a half from the plaintiff’s land, saw defendant’s train approaching Plentywood on April 21 while it was some distance away, and while it was about.the neighborhood of plaintiff’s land he saw smoke arising from the ground, indicating a fire; he was on the lookout because other fires had been set by the defendant’s train, and the witness owned a ranch in the same direction and near the line of defendant’s road. Ator went down the track immediately and ascertained that the fire had burned over some of plaintiff’s land and was then burning his staek of hay. While the witness does not tell us how near the burned area was to the track, he does indicate that the fire was so near that the smoke from the fire and the smoke from the locomotive appeared to commingle as he looked toward the. fire and the oncoming train. On cross-examination this witness testified: “I saw this smoke-rise up just after the train had passed and then saw the fire right away; to the best of my knowledge it was started by the Great Northern engine. ’ ’

A witness, Misfeldt, testified that he was on defendant’s train and saw it set the fire on plaintiff’s land on April 11, and two or three other fires between Medicine Lake and Plentywood. Plaintiff testified that he saw the defendant’s train start three fires along the Plentywood line shortly before April 21, probably during the week of that date. The witness Ator testified that during the month' of April, 1911, he saw the defendant’s train start three fires near the .Marrón place. Clark, a witness for the defendant, testified that he was the only locomotive engineer on the Plentywood branch during April, 1911; that he used only two locomotives during that month; that he used the same locomotive on the 11th and 21st; that the track runs up-grade along by the plaintiff’s place and into Plentywood; that he was probably running fifteen miles per hour as he passed through plaintiff’s place on April 21; that “I might have been working the engine hard if I was a little bit late; I do not remember if I was or not; * * * I was going my best always when we are going’ in that direction”; that in going up-grade more sparks are thrown out than at any other time. “In going up-grade with an engine of the kind that I was running particularly, you have to be very careful in the way you handle your engine in order to keep from throwing out pretty good-sized chunks of fire, and with the engines used on the Great Northern, particularly in going up-grade, and working them hard, you can’t prevent them from throwing out a big bunch of cinders and fire; * * * with the Great Northern engines in going up-grade, running the engine fast,- and working the engine hard, they do sometimes throw out pretty good-sized chunks of fire. ’ ’

We confess that this showing is very weak, and it is all the more inexcusable because it is perfectly apparent that better evidence could have been produced. The men who were fighting the fire on plaintiff’s place when Ator reached there were not. called or their absence accounted for. Even the witness Ator,- who saw the’ area burned, was not asked to state where that particular piece of land was situated with reference to the railway track or the direction in which the wind was blowing at the time. But with all these infirmities, we cannot say that the evidence is insufficient to warrant the inference that the defendant’s locomotive caused the fire. In each of the following cases a somewhat similar state of facts was presented, and it was held sufficient to go to the jury: Grand Trunk Ry. Co. v. Richardson, 91 U. S. 454, 23 L. Ed. 356; Railroad Co. v. Noland, above; Dunning v. Maine C. R. Co., 91 Me. 87, 64 Am. St. Rep. 208, 39 Atl. 52; Brown v. Benson, 98 Ga. 372, 25 S. E. 455.

The judgment is affirmed.

Affirmed.

Mr. Chief Justice Brantly and Mr. Justice Sanner concur.