Baltimore & Ohio Railroad v. Shipley

Robinson, J., delivered the opinion of the Court. This suit was brought to recover damages for the destruction of the plaintiff’s property by fire from the engines of the defendant. The question presented by the first exception, is whether it was competent for the plaintiff to prove that none of the hands or employes of the defendant were present aiding and assisting in putting out the fire, the plaintiff stating at the time that he proposed to follow it by proving that a gang of ten or twelve men employed for the purpose of repairs on the section of the road where the fire occurred were absent not on business of the Company. This evidence was offered to prove negligence on ²⁵⁴ 1 thé'párt' of the .defendant..

In .this State, where property ’ is' destroyed* hy fire from a locomotive engine,--tbe burden <.of"p/r'6of[is upon the company to show that ■ the .fire was 1 "óccasidnéd ‘^.without negligence/’ . Avtr 77, sec,-l,- Code. 11Without negligence, as ^secf in,¡filie -statute,1 means - the 1 exercise of'reasonable care. and. diligence on the part of ' the' co'tnpariy,' to avoid;as far As practicable,--injury-t-o prosper ty'along the line of its-rpad,; that is. to say,--by- having ‘its edgi'nes -properly constructed ¡and .in,good- condition, ‘■ahd pl'ace'd in'the charge.pf .sbilfpl,and', prude.rit persons, •’and rhahaged by such '.person? iin a skilful -and .prudent 'rhahher'; and'in keeping its rpacj-hpd in proper condition 'by preventing 'the negligent pccupiulation ofi combustible diatéfiál. But a(.company,,is:.nofi. obliged -to keep men statiódéd along the line of ut^road,, either -to guard against of to exliriguish fires ,whigh,.may -happen-.. ! With trains' p'ássing almo,?t at every hour-on- many -roads; add ■frith1 d rapidity unknown to.any other, power,!ife would be utterly impracticable, to keep mpu stationed-at .every point wh'efé a" fire .may occur. . -To.impose* süch a.dúby would not only be unreasonable in ifs.elf, hut it .would in fkct'1 diake railroad companies^ .insurers* against loss <by fife, of all the property along .the, lin.e; ofi.their, roads.

The proof thus offered, was calculated; to .mislead1 'the jury', by leaving’them to, infer.tfiat-the absence-of the hands 'employed for the purpose, pf.repairs- on the-sbctron of tile" róád 'wnere the, fire occprrecl, aud- the.failure on-their' pa’r't 'to assist in extinguisjii.ng; -fihe.same, -was evidfence of" negligence, on the part, of the,defendant.- * -; - The ’Cburt 'erred al?o we, think, ip. refusing to ^strike 1 oú't'So'm'üch óf’the*.testimony of, tpe, witnesses*-Rice :and'Sálmóh,"in regard* to | the, valu,a.tion , of.-the*-propertyde^ stfoye'd,‘as'was Based upon.thp ..representations ’of*other'persons',1 and'nol upop their.qwn kpowledge, ■- T-hes'e wit- •’ ne'sses’had' testified in regard to an appraisement .of the u property; made 'By them previous to the trial, hut upon ²⁵⁵ cross-examination it turned out, they had no personal .knowledge; .as =to paid Of the property included in the appraisement, -and ■ that their 'valuation in respect, to ^he .same, was..based entirely-upon the representations of other persons... We' knew of .ho' rule'of' evidence which permits a witness, to testify ’in'ífegáfd' id the value of pro- . perty.,.based upon, the mere hearsay declarations of others. .[Tbe counsel, are -in-'error in: supposing1 the motion to ■strike, out-theeanswer1 of 'the' witnesses came too ^ate. .Where.a question, improper-in-itsdlf, .is asked, objection thereto must-be made before it ismiiswe'red, but where the .question,i$ a properione', and the a’n'swci1 'thereto improper, (it.,is; the duty .of the. Court; on haolion, to exclude the qnswer from the jury.‘ ’ It was¡ urged, however, that the error of the Qourt in tlijs respect constitutes n'o ground for reversal of the judgment, because it,is contended that 'the value of the property, destroyed iwas- fully proven by 'other' witnesses. I>ut in a case of this- kind,.' where the jury is to ascertain the value of..the property 'in’questibip it is impossible for, qs to, sqy how far,, or .to What extent, "their determination, qf the.sqme-was. affected by the'evidence thus objected to, qnd,w,hich;,ought to have béen excluded. ‘ .

The, objection.’to'the que’stio'n as1 to'the usage of-the: defendant tb’the construction 'and- condition op. i^s. engines,.was..properly sustained'.’ ‘If the' property of the plaintiff .was destroyed by1 fife'from the engines of the defendant,, it, w.as incumbent bn‘the¡ Tatter'to prove that, it(s engines were properly1 eohstfucted’ and in sgood condition, a,nd .evidence of mere usage oh the part of the defendantjn .regard'to'the1 samé, would.'iiot necessarily prove, nqr was it-tbe :best evidence to ptóve, tbe actual constructiqn, and .condition of-its engine’. ’ The usage of the company migh t require; that''all'the engines used