Chase v. Hoosac Tunnel & Wilmington Railroad , 85 Vt. 60 ( 1911 )

Powers, J.

This is an action on the case to recover damages alleged to have been sustained by reason of a fire negligently communicated to the plaintiff’s land by the defendant’s locomotive engine. It appeared that the fire in question burned over a' large area of the plaintiff’s woodland; that the timber on this land had been cut and removed, and that at the time of the fire it was largely covered with a second growth of beech, 'birch and maple, with some ash, spruce and hemlock, ranging in size from twenty inches down to two inches in diameter; that the ground was exceedingly dry and that in many places the soil was burned to such a depth that its fertility for growing treeg was destroyed. Witnesses on both sides testified without. objection as to the number of cords of wood and feet of lumber destroyed and injured by the fire, and the value thereof at that time, and gave their estimates of the damage to the soil through which the fire ran. Certain of the witnesses were then allowed, subject to exception, to testify in effect, that in their opinions the trees destroyed, especially the hard wood, were worth more to stand and grow, than to cut into firewood, and some were .allowed to say how much more the land was worth as “sprout land” than for the wood upon it. The defendant objected that this line of evidence did not relate to a proper element of damage, because the answers were necessarily too speculative and uncertain to be reliable or legitimate. The defendant then insisted, as it does here, that the true rule governing the damages is “the actual damage to the wood and timber trees standing and growing upon the burned premises at the time of the fire, together with such damage to the soil, if any, by reason of the fire, as was shown by the evidence in the case, less the amount the plaintiff realized or might have realized from the wood and timber, by the exercise of the care of a prudent man in seasonably cutting, marketing and properly caring for the same; and that the measure of damages as to the wood and timber actually destroyed was its value as wood and timber (its sumpage as ' it is commonly called) upon the day of the fire. ”

Ordinarily, damages are judicially awarded on the theory •of compensation. The law seeks to make the injured party whole — to restore him, so far as can be done by an award of ■damages, to his former position. The rule contended for by the ■defendant would accomplish this result in many cases, but not in all. Where the property wrongfully destroyed is capable of being putto more than one use, and its value for one purpose exceeds that for another, the owner is entitled to recover of the wrongdoer the larger sum. Otherwise, he would not be made whole; for the true cash value of any property is represented by the amount it is worth for the most useful purpose for which it is available. So in many cases the “stumpage” value would not be full compensation for trees destroyed. Take young, growing trees, not large enough for wood or timber; these have mo “stumpage” value, but they have a present value as growing trees, nevertheless, depending more or less upon their age, size, location and the conditions surrounding them.

It is to be observed that the trial court did not allow the .jury to hear evidence as to the future value of these trees or to indulge in any speculation on that subject. The line was carefully and correctly drawn by the court; the evidence was limited to the value of the trees at the time of the fire, taking into account the fact that they were growing trees; and the charge was correspondingly guarded.

In these cases the rule of damages is usually stated to be the difference between the value of the land just before the fire and its value just after. Kilby v. Erwin, 84 Vt. 270, 78 Atl. 1021. This value before the fire is to be established in consideration of the fact that there is standing upon the land wood, timber and growing trees; and in reaching a conclusion it is proper to consider the character of the soil, the kind, quality, age and location of the trees. Louisville etc. R. R. Co. v. Spencer, 149 Ill. 97, 36 N. E. 91. All this is recognized and approved in Kilby v. Erwin, supra, wherein it is said: “One whose trees have suffered through the wrongful act or omission of another is entitled to a fair compensation for his actual loss.

* * * The elements of damage vary with the kind, condition, location and use of the trees. ”

The defendant’s objection to the evidence was properly overruled and the charge on this subject was free from error.

The only other exceptions relied upon in the defendant’s brief relate to the cross-examination of the witnesses Barre and Harris, who were respectively engineer and fireman on the engine which, it was claimed, set out the fire. Subject to exception, the plaintiff was allowed to ask each of these witnesses if he did not, in his testimony at another trial, make certain specified statements which were contradictory of the testimony given on the trial of this case. This was offered and received for the purpose of laying a foundation for an impeachment. The engineer frankly admitted that he did so testify at the other trial, and that the fact was as then stated. The fireman either denied making the former statement or said he did not remember making it. The plaintiff did not offer any other evidence as to these former statements.

It is enough to say in disposing of these exceptions that the extent of cross-examination to test the accuracy, veracity or credibility of a witness or to shake his credit by impeaching his character, is, to a large extent, within the discretion of the-trial court. Hathaway v. Goslant, 77 Vt. 199, 59 Atl. 835. That the plaintiff did not see fit to pursue the matter by the introduction of evidence of what the former statements, if any, were does not at all change the situation. It is apparent that the court’s discretion was not here abused.

Affirmed..