Opinion
J. K. Weatherford, Wm. D. Fenton, Ben C. Dey, and James E. Fenton, for plaintiff in error.
Walter H. Evans, Asst. U.S. Atty.
Before GILBERT, ROSS, and MORROW, Circuit Judges.
ROSS, Circuit Judge.
This action was brought by the United States in the court below against the Corvallis & Eastern Railroad Company, which operated a road in the state of Oregon extending from Detroit to Yaquina, to recover certain alleged damages. The ground of the action was the alleged negligence of the railroad company by which certain fires were started, resulting in the alleged injury to certain timber belonging to the government. That timber was within the Cascade Forest Reserve, through which the railroad company had a right of way for its road. In the first of the two counts contained in the complaint the plaintiff alleged that the defendant company negligently permitted inflammable material to accumulate upon its right of way, which, on or about July 23, 1906, was set on fire by fire falling from one of the defendant's locomotives, and which fire, so started, spread into the plaintiff's forest and burned and destroyed its timber, of the alleged value of $100, for the recovery of which damage, together with alleged amounts necessarily expended by the plaintiff in preventing the said fire from further spreading and destroying other timber of the plaintiff, the latter sought to recover by means of its first count.
The second cause of action counted on was based on a similar fire alleged to have occurred on the 11th of August, 1906, by reason of similar negligence on the part of the defendant in respect to accumulation of inflammable material on its right of way, and also by reason of other and further negligence, in that the defendant company negligently permitted its engine to be out of repair, to be unequipped with apparatus to prevent the escape of sparks, cinders, coal, and fire, and to be placed in charge of unskilled employes, which engine, so controlled, and in that condition, started the fire of August 11, 1906, in the aforesaid inflammable material, which fire spread to the plaintiff's timber, burning and destroying the same to the extent in value of $9,828.50, which sum, together with alleged amounts necessarily expended by the plaintiff in fighting that fire, it sought to recover by means of the second count of its complaint.
The case was tried with a jury and resulted in a verdict in the government's favor for $4,422.28, for which sum, together with costs amounting to $724.21, judgment was entered against the railroad company.
In support of the present writ of error, which that company sued out, it is contended that the court below erred in certain rulings respecting evidence, and also in respect to instructions given and refused.
Much reliance seems to be placed by counsel for the plaintiff in error upon the point that error was committed in the admission in evidence of these two letters: 'Portland, Oregon, Apr. 24, 1906.
'Mr. John A. Shaw, Sec'y Corvallis & Eastern R.R., Albany, Oregon-- Dear Sir: Your right of way through the Cascade Forest Reserve in T. 10 S.R. 5 E., is reported by Ranger Harry G. Hayes as being in a very dangerous condition as regards brush, debris, rotting logs, and ties, and is a menace to valuable timber owned by the government on account of the liability of a spark from an engine starting a fire in this inflammable material which might result in great damage to other property by the spreading of forest fires thus started, in the dry season.
'I inclose a copy of his report made after making a personal examination, and also a few kodak prints taken by him to verify his statements.
'In view of this dangerous condition of your right of way, I will ask you to take measures as soon as possible to clean up this right of way, and until this is accomplished, during the dry season to maintain a fire patrol after each train.
'While such action on your part cannot be compelled under the present state or federal laws, yet it would seem advisable for you to attend to this matter, both on account of the general good that would be accomplished by removing the danger to all property within a considerable distance of your line, and also for your own protection, as it is the opinion of the assistant United States attorney that damages could be collected for property destroyed through your neglect in leaving inflammable material on your right of way, and thus producing a menace to nearby property.
'I inclose copy of the opinion of the assistant United States attorney in this matter.
'If this right of way is not cleaned up by you in a thorough manner, and if a fire is started on account of neglect in not burning this debris, etc., resulting in damage to government timber, the government will at once take measures to recover full damages, on the grounds that the damage was caused by negligence on your part in allowing your right of way to be covered with inflammable material, which was a menace to the property of others.
'Very truly yours,
(Signed) D. D. Bronson, Forest Inspector.
'(3 Enclosures.)'
'April 26, 1906.
'Mr. Daniel D. Bronson, Forest Inspector, Customs House, City-- Dear Sir: Yours of the 24th inst. to hand relative to the condition of the right of way of the Corvallis & Eastern R.R. in township 10 south, range 5 east. I have sent the correspondence to Mr. J. K. Weatherford, vice president of the company, who will take the matter up with our superintendent. I will advise you as soon as possible in regard to what they will do relative to cleaning up the right of way.
'Yours truly,
John A. Shaw.'
The main ground of the objection to this evidence was that it constituted a self-serving declaration.
We do not think the objection has substantial merit. The letter of the inspector called the attention of the railroad company to a report made by a forest ranger as to the condition of its right of way, asked that suitable measures be taken to rectify the reported wrong, and called attention to possible consequences. Even if inadmissible, we cannot see that it could have been prejudicial to the defendant company. There was much positive testimony tending to support the contention of the government that the company permitted combustible material to accumulate upon its right of way, and, although a knowledge of the actual condition of its right of way is by law imputed to the company, the calling of its attention to a report of the ranger that it was in that unlawful condition was rather to the benefit of the company than to its injury.
Based upon the rule that in actions for injury caused by alleged defective machinery evidence of its subsequent alteration or repair is incompetent to show that such machinery was defective before the happening of the injury, the plaintiff in error, by assignment, complains of certain testimony of the witness Merle, who was foreman of the machine shop of the defendant company in which the engines in question were kept when not in use on the road. We extract from the record the proceedings on the trial covered by such assignments:
'Q. What was the condition, Mr. Merle, if you remember it, of the engines or engine which run up to Detroit at or about the 23d day of July as to its spark-arresting or fire-arresting devices and apparatus? A. After the engine being repaired, and being examined, and being reported several times, I eventually found the stack in bad condition.
'Q. Who reported it? A. Mr. Simpson, the engineer.
'Q. Who was he? A. He was running engines 1 and 2. We used to have two big engines and kept them for the east end of the run principally, and very seldom we would run a little engine on that run, because the work is heavy up there; and he was the man referred to.
'Q. What report did he make? A. Well, he made several reports.
'Whereupon said witness further testified that these reports were made on the roundhouse work report book, the regular record of the company; that book was put there by the company, given to him to put there for the engineers to make report on, and the engineers would make such reports on the return of each trip, if he had any work to be done. Lots of times they had no work to be done, and they just went right on home. Whereupon said witness was interrogated and testified as follows:
'Q. Now, do you remember whether or not Engineer Simpson made such a report on the day of this fire-- yes, on the day of this fire, or do you know? A. Yes, sir.
'Q. In this book? A. Yes, sir.
'Q. After-- on the return from the trip after the fire? A. Well, he told me that they claimed that they set fire. So that is all I-- that is as near as I can say from the date of the book-- that it is after the fire.
'Mr. Fenton: I move to strike that out as incompetent and not responsive.
'The Court: I will strike out the testimony as to the conversation with Simpson.
'Whereupon said witness further testified that the report book was missing in 1908, in the fall of the year. He went over in the morning. The book was there the night before. He went over to see if the man on the run had reported any work, which he done every night all the time he was there. Does not know what went with that book. It was taken out of there that night. The book is gone. Whereupon said witness was interrogated and testified as follows:
'Q.Will you please state the condition you found thatengine in after the July 23d fire, pursuant to thereport made to you? A. After the engine was reported, Iexamined the netting and stack. I told them it waspretty hot yet to examine--
'Q.Never mind what you told them. Tell the jury what youfound. A. I got up and examined the engine with atorch. It was so hot you could not get in there, andthe engine had to be used the next morning, and with atorch I could not see anything in the stack, because itwas too hot to get your head down in there. I waiteduntil about 8 o'clock, trying to find the mastermechanic, to report to him what had happened; and theyasked me if I could see anything. I told them,'No,' and they allowed the engine to go out thenext day.
'Whereuponsaid witness testified that this was after the fire.
'Whereuponcounsel for defendant moved to strike out all ofthat, for the reason that it is incompetent andimmaterial, and that any conversation the witnesshad, or what he told any other person, would not haveany bearing.
'Whereuponthe court said:
'TheCourt: The conversation he had would not becompetent in this case, but what he saw in theexamination of the engine would be competent.
'Whereuponsaid witness further testified that he went out onthe following day. He reported the engine hadthrown fire. Whereupon counsel for defendant movedto strike out that; whereupon the court said:Counsel asks you what you did, what you know byyour examination, not what somebody told you.Whereupon said witness further testified asfollows:
'Theyhad to work at it the following day and concludedto hold the engine and take the stack off theengine, and the barrel of the stack of this enginestands up maybe two feet on the inside, cannot tellhow many inches, could figure it out on a blueprintmap. It had no hold out in the bottom of the barrelof the stack to allow cinders to go into the smokebox. The base of the stack to the top of the barrelwas full of cinders, and they were hot. He got downon the floor and took all these cinders out.Searched the netting and could not find anythingwrong with the netting. Held the smokestack thereall that day until late in the evening, waiting forthe master mechanic to come and look at it himself,to see if he could see anything wrong with it. Hedidn't come, and about 7 o'clock that nighthe had the stack on and told them, and let theengine go out. It went out a few days and he had tolook at it again. Complaint made of the engineagain. They concluded to take stack off and putanother one on, and they done so, and shortly afterthis other engine that had this stack, it wasreported, and he got up on this engine and lookedat the stack, and found between the casting of thetrapdoor, where the man that had put the netting indidn't have material enough to reach over tothe flange, consequently he could take his rule byopening it two inches single thickness--two-footrule-- and put it between the casting and thenetting. He went to work and got some pieces ofnetting-- the engine had to be used-- and put inthree different pieces, he thinks. They have sixcourses in that or more. The same stack went on thesecond engine. On that engine at that time he putthem in and flanged them out, and that stack wasall right after that. Consequently he concludedthere was trouble with the stack. He had taken thatstack down before that and put two holes-- had amachinist drill two big holes in the barrel of thestack. First though that was the cause, and afterthe holes were cut in, and made the same as theother stacks, there were still complaints made, andafter that he located the trouble under thattrapdoor between the lower casting of the trapdoor,the base, and the netting, and he fixed it. Was upat Breitenbush Springs after the second fire,talking about it, one thing and another. It wasafter the second fire that he located that stack,but there was another stack reported on anotherengine afterwards, on two or three engines that runup there. Engine 2 was reported. It had beenrunning up there. Engine 1 was reported again andfound in bad condition.
'Whereuponsaid witness was further interrogated andtestified as follows:
'Q.Now, on these examinations, what condition didyou find the ash pan of this engine in? Thatis, the apparatus underneath to--
'Whereuponcounsel for defendant objected to the same asincompetent, and as not pleaded. Whereupon saidwitness answered:
'A.Mr. Walsh had come and asked me to look overthe ash pans at that time, and we found the ashpan netting. After looking at the stack andeverything, he insisted on looking at all theash pans. They looked at engine 1's ashpan, and the netting did not come up to the mudrim by two inches-- the piece of netting. Theash pan is maybe from eight to ten inches deep,and the netting came-- it is bolted on withthree bolts on the bottom of the ash pan, twobolts on the side. There was a space of twoinches. He looked through the wheel himself. Heinsisted on my putting a piece of nettingacross. We did not bolt it on, but sewed it onwith wire, and it remained in that way thatseason.
ash pan, full width of it. In one corner of that pan the ashes had accumulated all around. They were kind of hot, and it bucked it up. He corked in asbestos, and kind of fixed it down.
'Whereuponsaid witness further testified that there wasnothing between this mud ring and the piece ofnetting when the damper was open; when it wasshut the damper was closed. There was an aperturefor the escape of sparks and coals-- you couldput your arm through it-- the full length of the
'Whereupon counsel for defendant moved to strike out all of the foregoing testimony referring to the ash pan, as hereinbefore set out, upon the ground that same is incompetent and not pleaded, which motion was overruled and exception allowed.
'Whereupon said witness further testified that he found a hole under the trapdoor casting and the stack, base of the trapdoor casting and the netting. Did not examine the stack door itself. Examined the netting and this underneath. It was a hard thing to get to. There is no other trapdoor except the one below there in the stack, in any of the nettings and stack, there is only the one trapdoor in the netting. The trapdoor is faced and set on it with hinges. The trip before that they found a hole in this netting. This was the day before the first fire. It was the trip before he examined the netting, as near as he can remember, immediately before the fire. The trapdoor netting was in bad order, and he repaired that there on the 23d or 24th-- it might have been the 22d, it was the trip before that, the trip when it was reported for the fire. He repaired it when he examined it that time, repaired the trapdoor before the fire.'
Passing the fact that the only ruling appearing in these proceedings against the plaintiff in error was that denying its motion to strike out the reference in the witness' testimony to the ash pan, we think no prejudicial error appears, since the evident purpose and scope of the evidence was to show the negligent condition of the engine prior to and at the time of the fire.
But one other question in the case calls for special mention, and that relates to the measure of damages. Counsel for the plaintiff in error contends that instructions requested by him upon that subject were not sufficiently and properly covered by the charge of the court, and further that, since the plaintiffs sought to recover only for timber burned and destroyed, the court was in error in referring in its charge to the land upon which the timber stood, and also in its reference to other timber of the government not burned or destroyed. The charge upon the point in question is as follows:
'The measure of damages in this case is the difference, if any, between the value of this timber immediately before the fire, and immediately after. I think it probably can be assumed from the way the case has been tried, and from the record in this case, that the value of this property consisted in the timber, and that the land, without the timber, is of no special value; at least the evidence has all been directed to show the amount of timber destroyed, and its value. Of course the land belongs to the government of the United States, and there is no law, I believe, under which it could be disposed of, but there is a law authorizing the sale of timber from government reserves under certain conditions and restrictions, and therefore, in arriving at the damages, if any, sustained by the plaintiff, it will be your duty to take into consideration the market value of the timber both burned and unburned upon the land immediately before and immediately after the fire, and the difference between such market values, if any, will be the damage sustained by the plaintiff to this land and the timber thereon. You are authorized in arriving at this conclusion to take into consideration the location of the land and the timber, its accessibility to market, and the transportation facilities, the quality of the timber, the effect of the burned timber upon the value of the other timber, adjacent to or surrounded by it, together with all the other evidence in the case. To the sum which you may find to be the damage the plaintiff is entitled to recover on account of the destruction of this timber, you will add the amount that it expended, or the amount the testimony shows that it expended in fighting these fires and in preventing them from spreading into other and adjoining timber, and to this latter item you will be justified in adding interest at 6 per cent., or the legal rate.
'Now, in this, as in all cases, it is the duty of a party to reduce his damages as much as can reasonably be done under the circumstances, and therefore, if you believe from the testimony that, after this timber had been burned, it could have been disposed of by the government officials for any sum-- according to what sum it could have been disposed of, if it had an opportunity to sell it-- it was, I think, its duty to have done so and thus reduced the damages; but in determining that question, and in examining that view of the question, you will not overlook the fact as to whether there is a market for the sale of this timber; whether they had an opportunity to sell it; whether they could have disposed of it; and all the circumstances that surrounded the location and condition of this particular timber now in controversy. If these people could have sold this timber-- if there was a market for it, and they could have sold it and gotten something for it-- it was their duty to do so, and reduce the damages. If, on the other hand, they could not sell it, there was no market for it, and no opportunity to sell it, they were not negligent in failing to do so, and the government would be entitled to recover whatever damages it sustained by reason of the fire.
'I do not understand that one can negligently and carelessly cause a fire in a timber claim belonging to another, and then respond in damages to the full extent that the other suffered by reason of that fact because the timber would, from a speculative standpoint, be worth more money. Whether it is worth anything or not is of course dependent upon the market. After the timber is killed, the testimony in this case shows it will decay, and it will decay in a certain length of time. Now, if during that time, before it decayed, there was no market for the timber, no opportunity to sell it, no means by which a man could get any money out of it, the fact that it may have a speculative market value ought not, it seems to me, to be a reason why the damages should be reduced, provided the owner of the property exercised reasonable care and diligence and effort to dispose of the property and reduce the damages to the smallest possible extent, and in that view you have a right to consider this question as it appears from the testimony in this case. * * *
'Mr. Fenton: I think it but fair to your honor to call your honor's attention to the instructions that my Brother McCourt asked your honor to give, and which your honor gave on the subject of damages, where I think your honor used this expression, 'And the effect of the burned timber upon the value of the other timber adjacent to it,' in the last instruction. I think that is not pleaded, your honor, and, although my Brother McCourt insists upon it, I think I should call the attention of the court to it at this time.
'Mr. McCourt: I don't remember that your honor gave it. I was going to except because you didn't.
'The Court: Gentlemen, these instructions were submitted by the counsel, and it may be that in reading them I read more than I intended to. My attention has been called by Mr. Fenton to the fact that, in instructing as to the measure of damages, I said you might take into consideration the effect the burned timber would have upon the other timber standing adjacent. I did not intend to give that instruction. The question for you to determine is the injury to the timber that was destroyed.'
While the instruction given by the court to the jury in respect to the duty of the plaintiff to minimize its damage by the sale of the damaged timber, if possible, was not as clear as it might have been made, still we are of opinion that the jury must have understood therefrom, that that duty devolved upon the plaintiff, and that the effort to do so must be reasonable as to time as well as in all other respects.
Nor do we think the contention of the plaintiff in error that the jury was left by the instructions to consider, in arriving at its verdict, damage to other timber of the plaintiff than such as was burned or destroyed, and to consider damage to the land upon which the
Page 317.
timber stood, is well founded. The record shows that at the close of the court's charge the counsel for plaintiff in error made objection to that clause thereof which reads, 'And the effect of the burned timber upon the value of the other timber adjacent to it'; but counsel made no other or further objection, which he should have done if he had any. In response to the objection that was made, the court said to the jury:
'Gentlemen, these instructions were submitted by the counsel, and it may be that in reading them I read more than I intended to. My attention has been called by Mr. Fenton to the fact that, in instructing as to the measure of damages, I said you might take into consideration the effect the burned timber would have upon the other timber standing adjacent. I did not intend to give that instruction. The question for you to determine is the injury to the timber that was destroyed.'
The court thereby limited the consideration of the jury to the timber that was destroyed, and, in our opinion, sufficiently instructed them as to the law governing the case.
The judgment is affirmed.