Boyce v. Cheshire Railroad , 42 N.H. 97 ( 1860 )

Fowler, J.

The evidence as to what were the condition and repair of engines, other than those in use upon the defendants’ road on the night of the fire, and from which, if from any, the fire must necessarily have been communicated to the plaintiff’s buildings, was incompetent and inadmissible. That sparks or even coals might have been emitted at other times from other engines employed upon the road, had no legal tendency to prove that the engines employed upon that particular occasion, emitted either sparks or coals. To have rendered the evidence competent, it should have been confined to the same engines, operated in the same manner and in the same state of repair, or to other engines, conceded to have been of the same construction, to have been used in the same ■manner and in the same state of repair; which was not the fact with the engines as to which testimony was introduced against the defendants’ objection. Hooksett v. Concord Railroad, Merrimack, July term, 1860.

Nor had the cross-examination of G-. "W. Perry rendered the testimony objected to competent. That cross-examination was upon immaterial matters, so far as it did not relate to the engines from which the fire was alleged to have been communicated to the plaintiff’s buildings, was introduced by the plaintiff himself, and he was not at liberty to contradict it. Seavey v. Dearborn, 19 N. H. 351; Hersom v. Henderson, 23 N. H. 498.

It might be suggested, that, under the instructions of the court, the testimony objected to, though incompetent, was also immaterial, and therefore its improper admission furnishes no ground for setting aside the verdict; but we think it was well calculated to prejudice the minds of the jury against the defendants. Winkley v. Foye, 28 N. H. 518; S. C. 33 N. H. 171; Cook v. Brown, 34 N. H. 460; Center v. Center, 38 N. H. 318.

"Whether the instructions, in regard to the maintenance of the action without proof of negligence, were correct, it is not now necessary to determine. It having been decided in Hooksett v. Concord Railroad, 38 N. H. 242, that in the case of a fire resulting from the engines of the cor-poi’ation, a railroad is liable for damages without regard to the question of negligence, the only point to be decided would seem to be, whether the immaterial allegation of negligence is so descriptive of the material and legally essential averment that the fire was communicated to the plaintiff’s buildings from the defendants’ engines, that it can not be rejected. As a general rule, no allegation which is descriptive of the identity of that which is legally essential to the claim or charge, can ever be rejected; and, if an immaterial allegation limit and confiñe that which is material, the latter can never be available to any greater extent; for such an averment is always descriptive. 3 Stark. Ev. 1539-1550. State v. Copp, 15 N. H. 212. In other words, the substance of the rule is, that, unless you may not only reject the immaterial allegation, but every allegation or averment which it goes to identify by description or to limit or define, an immaterial averment can not be rejected as surplusage; so that, if any material averment is thus described, limited or defined, the indictment, declaration or other pleading, must fall without proof of the immaterial averment.

In the present case, the duty of the defendants so to run their engines as not to burn the property of persons situated near the line of their road, is alleged generally, but the gravamen of the complaint seems to be, that they so negligently run them that the plaintiff’s buildings, by reason of such negligence, were, by means of fire from one of said engines, set on fire and consumed. "We think it may well be doubted, whether this allegation, of negligence is not so descriptive of tbe identity of tbe material averment — whether it does not so limit and define tbe allegation of the communication of fire from the defendants’ engines to Jthe plaintiff’s buildings; that, although unnecessary to have been made, it must be proved in order to sustain the declaration. But, as this question may be entirely avoided upon a new trial, if upon careful examination it shall be deemed advisable, by striking out the allegation of negligence wherever it occurs, it is unnecessary to pursue the subject farther.

For the admission of incompetent evidence, the verdict must be set aside and a new trial granted.

Verdict set aside.