Henry v. Southern Pacific Railroad

By the Court, McKinstry, J.: The plaintiff introduced, without objection, evidence tending to show that defendant had permitted dry grass to remain between the track of the railway and the fence, in such quantities as would constitute a means of communicating fire from the engine to the field beyond the fence. The defendant subsequently moved to strike out all testimony relating to the condition of the strip of land between the track and the fence, “for the reason that it appeared from the whole evidence introduced by the plaintiff that the combustible material, if any, on said strip was not an element in causing the ignition or burning of plaintiff’s property.” The denial of the motion to strike out by the court below is assigned as error.

The motion was not based upon the ground that the testimony was inadmissible under the averments of the complaint, and that objection cannot first be made here. 'Where a motion is made to strike out testimony the moving party should specify his objections to the testimony with like particularity as is required in pointing out an objection to a question. (Sill v. Reese, 47 Cal. 341.) If the dry herbage was permitted to remain standing in such quantities as showed negligence, evidence of that fact, in the absence of an objection of variance from the allegations of the pleading, would ordinarily be admissible. (Flynn v. S. F. & S. J. R. R. Co., 40 Cal. 14.)

There was some evidence that the grass on defendant’s “ right of way” had been recently burned, and it was a question of fact for the jury whether the fire was lighted there or in the field adjacent. If, however, as argued by counsel for appellant, the evidence was conclusive that the fire commenced in the field of Cagney, we ought not to assume that [182]the jury, without any evidence, found that it commenced on the “right of way.” If the court had granted defendant’s motion, it could not have obliterated from the memories of the jury the evidence already received. The order granting the motion would have constituted an implied direction to the jury to disregard the testimony. In the charge of the court the jury were distinctly told that if the fire was not communicated by the dry grass or herbage on the line of the railroad, the condition of the “right of way” as to dry grass or herbage was immaterial, and required no consideration at their hands. It must be presumed, in view of the charge, that no injury was done defendant by the denial of his motion to strike out.

The court below properly refused a nonsuit. We think there was evidence tending to prove that the fire was not the probable result of the ordinary working of a locomotive under like circumstances, and in such case evidence that the fire was communicated from the engine is evidence of negligence sufficient to go to the jury. (Hall v. Sac. V. R. R. Co., 14 Cal. 387.) There was, however, evidence of specific negligence, in that there was evidence tending to prove that the particular engine was required to perform service which caused it to “ labor,” and to emit more sparks than if a less( number of cars had been attached to it.