• 129

No. 70

CIRCUMSTANTIAL EVIDENCE: INANIMATE NATURE

injury Former injury

/actory

70. CENTRAL VERMONT R. CO. v. SOPER
UNITED STATES CIRCUIT COURT OF APPEALS. 1894

59 Fed. 879; 8 C. C. A. 341

W9350 w457

Admitted

IN error to the Circuit Court of the United States for the District of Massachusetts. At Law. Action by John E. Soper and others against the Central Vermont Railroad Company for the loss of 3,600 bushels of grain, in the burning of a grain elevator owned by the defendant. Verdict and judgment for plaintiffs. Defendant brings error. Reversed.

The plaintiffs claimed, in the opening of their case, that the fire originated at the foot of what was known as the "lofting leg." This lofting leg was a piece of machinery by which the grain was carried from the bottom to the top of the elevator. The pulley at the bottom of the lofting leg made about ninety-six revolutions per minute; and the claim of the plaintiffs was that the bearings at the sides of this pulley had become heated, and thereby ignited the dust which had accumulated upon them, from which the fire was communicated to the building.— The plaintiffs introduced as a witness one Aaron Linton, who testified that he was for many years foreman in this elevator, and well acquainted with its construction and method of operation. The witness testified among other things, that the bearings of this pulley at the foot of the lofting leg were beneath the elevator floor, and were oiled by pouring oil into two pieces of pipe, about two feet long, which led from above the floor down into the bearings. He was allowed to testify, against the objection and exception of the defendant, that while he was foreman of the elevator these bearings frequently became heated, that there was a tendency for dust to accumulate at that point, and that there was also a tendency for the pipes to become clogged and filled with dust and grease. Against the objection and exception of the defendant, a witness, O'Connor, was allowed to testify as follows:

"Q. - Did you ever know the bearings at the foot of the lofting leg to become heated? A.- I do.

How long prior to this time had you noticed it? A. I do

not remember.

66

"Q. "Q. "Q.

- You say it might have been a month. Would you say two weeks? A. I do not remember.

"Q. All I want to get at is your best understanding. A. I will say a month.

"Q. These bearings, you say, would become heated at this point? A. Yes, sir.

"Q. Would they ignite any dust or accumulations there? A.

Yes, sir.

"Q. sir.

Have you ever known the dust to become ignited? A. Yes,

"Q. Many times? A.-Once.

"Q.Was this the time you were speaking of? A. No, sir."

...

There was no direct evidence in the case tending to show that any shaft in the defendant's elevator was out of line, or that the oil tubes to the bearings at the foot of the lofting leg, or to any other bearings in the defendant's elevator, had become clogged. All the foregoing testimony was introduced by the plaintiffs in the opening of their case. The defendant claimed that, from all the circumstances in the case, it was evident that the fire was of incendiary origin. In reference to this aspect of the case, the Court instructed the jury: "Now, gentlemen, you should find that this fire did not result from the defective appliances, or from the gathering debris, but was the result of incendiarism, the defendant will not be liable, provided the defendant furnished reasonable watchmen, and other reasonable protection against such hazard. . . ."

if

C. A. Prouty and Sigourney Butler, for plaintiff in error. The testimony of Mr. Linton, who was foreman at the elevator previous to 1887, that the bearings at the foot of the lofting leg frequently became heated, was inadmissible. The time referred to was more than three years before the happening of the fire. . . . That the employees, whose business it was to oil these bearings when Mr. Linton was foreman, in 1887, neglected their duty on some occasions, had no possible tendency to show that the employees of the defendant also neglected their duty at the time in question. It is not permissible to show that a person is habitually careless, as bearing upon the question whether he has been careless upon a particular occasion. Gahagan v. Railroad Co., 1 Allen 187; Maguire v. Railroad Co., 115 Mass. 239; Whitney v. Gross, 140 Mass. 232; Propsom v. Leathem (Wis.), 50 N. W. 586. . . .

Robert M. Morse (William M. Richardson and Charles E. Hellier, on the brief), for defendants in error. Linton's testimony was properly admitted. . . . The testimony is admissible as showing, and affecting the defendant with knowledge of, a dangerous condition of things at the particular place and as showing the possibility or probability of fire from the causes described. Railroad Co. v. Richardson, 91 U. S. 454; Piggot v. Railway Co., 3 Man. G. & S. 229; Sheldon v. Railroad Co., 14 N. Y. 218.

Before COLT and PUTNAM, Circuit Judges, and NELSON, District

PUTNAM, Circuit Judge. . . Those portions of the evidence of Linton and Jenkins which were objected to relate entirely to the tendency of things, inanimate objects,being, in this case, the machin

ery. The plaintiff in error has argued as though they related to the peculiar habits of certain specified human beings. The distinction is a broad one; and, if it is kept in mind, the evidence was clearly admissible, for the purpose, not of showing that the employees of the defendant below were negligent, but of showing facts, some of which the jury might, perhaps, have assumed without evidence; namely, that it is the tendency of certain parts of rapidly running machinery to get heated, and of dust in mills where grain is ground or stored to be of a highly inflammable character. These facts might have been properly brought to the attention of the jury, both for the purpose of showing a point where the fire might have originated, and also of showing the necessity of care to guard that point. Maguire v. Railroad Co., 115 Mass. 239, cited by the plaintiff in error, which related to the negligent acts on other occasions of the defendant's driver, for whose unskilfulness he was sued, is not in point. The fact that the tendency to get heated, and the inflammable character of the dust, were explained by witnesses, even if the jury might have assumed a part thereof as true without proof, cannot prejudice either party.

The testimony of O'Connor, objected to, goes a little further. He stated, in substance, that he had known of instances when the bearings at the foot of the lofting leg became heated, and that he had also known the dust to become ignited at this point. This evidence is clearly within the rule established in Railroad Co. v. Richardson, 91 U. S. 454, and in the other cases referred to in Railway Co. v. Johnson, 10 U. S. App. 629, 4 C. C. A. 447, 54 Fed. 474. . . .

As the case stands, the plaintiff in error must prevail, on its exception to the refusal of the learned judge to direct a verdict for it on the ground that it appeared that the plaintiffs below did not bring their action for the loss within three months after it occurred.

Judgment reversed. New trial ordered.

Former fires

71. FISHMAN v. CONSUMERS' BREWING COMPANY

SUPREME COURT OF NEW JERSEY. 1909

not adry.

w.2351 4.452

ON appeal from the District Court of the city of Newark. Before Justices REED, TRENCHARD, and MINTURN.

For the appellant, Child & Carter (Riker & Riker, of counsel). For the appellee, Philip J. Schotland. The opinion of the Court was delivered by

MINTURN, J. The plaintiff's horse, top buggy, and other chattels incident thereto were destroyed by a fire, which, as plaintiff alleges, originated in a heap of ashes adjoining the stable of Nicholl & Company, where the property in question was kept. The ash heap was upon

defendant's premises close to the stable, and the fire took place about half-past three o'clock of the morning of February 19, 1908. The plaintiff, over continuous objections, deemed it necessary for the purpose of his case, to ask the witness Martin these questions:

"Q.-To your knowledge was there a fire at the same place before A. Yes, sir.

this?

"Q.

When was that? A.- On the 14th of December, 1901. "Q. And did you make an investigation at that time? A. Yes, sir.

"Q. What did you find at that time might cause the fire? A. Hot ashes against the weather boards.

"Q. What burned at that time? A. Weather boards.

"Q. Did you make an investigation of the cause of those weather boards burning at that time? A. Yes.

"Q. Where were those weather boards you speak of? A. the same location as the last fire.

It further appeared from the testimony of this witness that after the 1901 fire a sheet-iron plate had been placed between the ash heap and the stable, and that when this witness reached the scene of the fire shortly after it started, that iron plate was not hot, but cool enough, indeed, to enable him to handle it. It will be perceived, therefore, that the conditions preceding the two fires were essentially different.

The only purpose, apparently, which could actuate the plaintiff in introducing this character of testimony as material to his cause, is the specious reasoning included in the proposition, post hoc, the fire of 1901 originated; ergo propter hoc, the fire in question must have so originated, and it requires no elaboration of argument to expose the fallacy of such a syllogism both in logic and in law. Relevancy of testimony, as defined by Stephen, is “that any two facts to which it is applied are so related to each other that, according to the common course of events, one, either taken by itself or in connection with other facts, proves or renders possible the past, present, or future existence or non-existence of the other." Steph. Dig. Ev. art. I. The testimony in the case made it quite manifest that, since the fire of 1901, conditions had changed, and precautions against fire had been taken by defendant, so that under no reasonable construction of the physical principle of cause and effect could this testimony be applicable. It is inadmissible because of its remoteness in point of time, during which interim changed conditions resulted; but, primarily, as is said in one case, “upon grounds of public policy to prevent the multiplication of issues in a case" without apparent connection. Costello v. Crowell, 129 Mass. 588; State v. Raymond, 24 Vroom 260; Collins v. New York Central Railroad Company, 109 N. Y. 243.

For this reason the judgment is reversed and a venire de novo is awarded.

72. ALCOTT v. PUBLIC SERVICE CORPORATION

COURT OF ERRORS AND APPEALS OF NEW JERSEY. 1909
78 N. J. L. 482; 74 Atl. 499

J

de fest in swite!. we,350 w.457

ON error to the Supreme Court, whose opinion is reported in 48 Vroom 110.

in admitted

For the plaintiff in error, John W. Wescott. For the defendant error, Edward Ambler Armstrong. The opinion of the Court was delivered by

PARKER, J. Judgment in favor of the plaintiff in error was reversed in the Supreme Court on the ground that the proof showed without contradiction that the switching device in which plaintiff's wagon wheel seems to have caught was of standard pattern, in common use, and had been properly laid and inspected. The propriety of that determination is now before us for review. The circumstances of the accident are set forth in the opinion of the Supreme Court and need not be here repeated in detail. . . .

There was evidence tending to show that the switch was out of order some days prior to the accident in question. This evidence was objected to by defendant, and an exception that was taken to its admission will be dealt with presently. Taken with the other evidence, a jury question was presented whether the switch was out of order and had been allowed to become so by negligence of the defendant, notwithstanding testimony on the part of the defendant that inspections were regularly made and that it was found in good condition.

The judgment of the Supreme Court, reversing the trial Court, should therefore be reversed unless justified by some error at the trial that would vitiate the judgment in the trial Court. Two points are urged by defendant in error: That the trial Court admitted testimony of other accidents at this same switch shortly before and shortly after the accident to plaintiff; and that the Court charged, in effect, that this testimony might be considered as throwing light on the question whether the switch was out of order at the time of the plaintiff's accident. It is claimed, on the authority of Bobbink v. Erie R. R., 75 N. J. Law 913, decided by this Court, that the testimony was improper, and that the Court should not have alluded to it in the charge. We think that the weight of later authority and the better reasoning favor the view that the action of the trial Court was proper. One witness testified that his wagon was stopped in a similar manner, by the wheel catching in the switch, some thirteen days before plaintiff had that experience. Another witness testified that three days after the accident, as a result of his own wagon catching in the switch, he examined it, and his description of it at that time corresponded closely with plaintiff's description. of it at the time of the accident in question.