GILBERT M. BRADFORD vs. BOSTON AND MAINE RAILROAD.

CARROLL, J. On the eighteenth of June, 1912, a dwelling house and other property known as the Mann property, in the part of the town of Charlemont called Zoar, were damaged by fire. It was contended that a spark from one of the defendant's locomotives set fire to a mill of the Massachusetts Talc Company and that the

Page 132

fire thence spread to the premises in question. In answer to a specific inquiry submitted to them, the jury found that, "The fire that damaged the Mann property" was not "communicated to that property by a locomotive engine of the Boston and Maine Railroad." The title was in dispute, one Fred R. Shaw and the plaintiff each claiming to be the owner. Shaw's action for damages was pending and by order of the judge, [Note p132] the cases were tried together.

In 1909 the property was owned by Gilbert H. Mann. Shaw claimed title under a deed from the administrator of Dexter B. Cook, who was the purchaser at an execution sale. The administrator's deed to Shaw was executed July 22, 1913, subsequently to the fire. Mann died before the fire and by his will gave the whole estate to the plaintiff. The plaintiff also held a second mortgage thereon, and became the purchaser at the foreclosure sale under such mortgage after the fire.

The plaintiff's first exception is to the order directing the cases be tried together. This was a matter within the discretion of the judge and there was no error of law in the course taken by him. Burke v. Hodge, 211 Mass. 156. Lumiansky v. Tessier, 213 Mass. 182, 188.

The plaintiff was a witness and was asked the value of the buildings destroyed by fire. This evidence was excluded. Both cases were then on trial. Not knowing what the evidence of title would disclose, the judge stated that as it was a question who owned the property he would at present exclude the evidence. The matter was not again called to his attention. This exclusion was not a definite and final ruling entitling the plaintiff to an exception; if it later appeared that there was evidence of the plaintiff's title for the jury to pass on, the attention of the judge should have been called to the excluded testimony. N. J. Magnan Co. v. Fuller, 222 Mass. 530, 534. Apart from this, the finding of the jury that the fire was not caused by the defendant made the question, of the extent of the damages and the value of the property an immaterial one. Cotter v. Nathan & Hurst Co. 222 Mass. 433.

The plaintiff claiming title as devisee under the will of Gilbert H. Mann, the defendant was permitted to show that Mann's

Page 133

estate had been represented insolvent and the commissioners had been appointed; together with the amount of the debts according to the representation of insolvency and according to the return of the commissioners. Fred R. Shaw, the other plaintiff, offered in evidence a deed from the deputy sheriff to Cook, the plaintiff in this action excepting thereto, Shaw having derived his title from the administrator of Cook. All these questions of title are now of no importance because of the finding of the jury, and we need not consider them. The third, fourth, fifth and sixth exceptions are therefore overruled.

A witness was asked, "Whether or not you have seen fires set from other sparks from engines?" The question was excluded. The same witness was permitted to testify to her knowledge of fires in this particular locality caused by sparks from locomotives. This exception must be overruled. See McGinn v. Platt, 177 Mass. 125.

The evidence showed that the fire started in the mill of the Massachusetts Talc Company, which stood near the railroad track. Frederick K. Daggett was the treasurer and general manager of the talc company. He was a witness for the plaintiff, and testified that, shortly before noon on the day of the fire, he bought some cigars and matches and went upstairs to the second floor where the fire started. It was in evidence that a large amount of inflammable material was stored on this floor. At this time the machinery was running, none of the employees being present. Adney White, a school boy, testified that on the day of the fire he walked through the mill on his way home from school and saw Daggett on the stairway looking up to the second story; that some time after this, when the talc company's case was on trial, [Note p133] he went to the office of Daggett's lawyer with Daggett who told him "not to say that at the time he saw him in the mill, on the day of the fire, he had an oil can in his hand, because he did not." Daggett was then asked on cross-examination, the plaintiff excepting, whether the plant of the talc company standing in the same place, was burned the year previous. He also testified that he had a deed of trust of the property. The deed was admitted in evidence. We

Page 134

think this evidence was admissible, within the discretion of the presiding judge. The defendant contended it was not responsible for the fire; that it started in the mill of the talc company. As a step toward showing its origin and cause the evidence of the former fire was admissible. The deed was admissible as explaining the motive and intent of Daggett. See Everson v. Casualty Co. of America, 208 Mass. 214; Noyes v. Boston & Maine Railroad, 213 Mass. 9.

While the question of the financial condition of the talc company and the admission of its records, which was confined to the vote authorizing the deed of trust to Daggett, as well as the evidence of what occurred at the meeting when this vote was passed, were somewhat remote, we cannot say in view of the nature of the issue involved that there was any error of law in the admission of the evidence. This disposes of the eleventh, twelfth and thirteenth exceptions.

The plaintiff asked Daggett, "Whether or not, before the fire of June 18, 1912, his property, situated where the talc mill was burned, was injured by a fire communicated by sparks from an engine or a locomotive of the Boston and Maine Railroad, causing a loss for which they adjusted with you?" This question was excluded. It was entirely irrelevant whether the defendant had caused a previous loss which it had adjusted with Daggett or not. The plaintiff also asked Daggett this question: "How many buildings — wooden buildings — have you owned in your lifetime?" the plaintiff offering to show that ever since Daggett was twenty-one years of age he had owned wooden buildings in various parts of New England, and that the only fire he ever had was in Zoar next to the Boston and Maine Railroad. In the exclusion of this question we see no error in the ruling of the judge.

The defendant's train dispatcher at North Adams testified from his record as to the time when trains passed Charlemont station. The record was made up from information reported to him by telegrams from the agents at different stations, showing the passing of trains, and was kept in the usual course of business. The plaintiff excepted to this evidence. It was properly admitted. See Donovan v. Boston & Maine Railroad, 158 Mass. 450; therefore, the sixteenth exception is overruled.

It appeared that the roof of the talc mill was covered with a

Page 135

substance known as Carey's Magnesia Roofing. This roofing had been exposed to the weather for about a year and was broken in places. Edward P. Harrison, qualified as an expert, was asked by the plaintiff, If "there is a weak spot in that roof for a spark from an engine to lodge and eventually to set fire to the wood underneath, and the fire had been set, will you tell the jury whether or not it would be possible for that fire to smoulder undiscovered, before it broke out into flame, for a period of three quarters of an hour or more?" The judge ruled that the matter was not one of expert knowledge, to which ruling the plaintiff excepted. We think the jury had sufficient knowledge to pass on this question without the aid of expert testimony. Lyman v. State Mutual Fire Ins. Co. 14 Allen 329. Higgins v. Dewey, 107 Mass. 494. Commonwealth v. Rodziewicz, 213 Mass. 68.

The jury found for the defendant. The plaintiff filed a motion to set the verdict aside because of the misconduct of the jury. The motion was overruled, the plaintiff excepting. An exhibit of the roofing material before its exposure to the weather was in evidence, and was taken to the jury room. It was a question at the trial whether the roofing material in use on the building was inflammable. A number of burnt matches were found in the jury room and the plaintiff offered to show that the jury experimented with the material and attempted to light it. The judge ruled that, even if this fact were established, it would not be a sufficient ground for disturbing the verdict. Assuming that the jury did experiment and test the material by attempting to burn it and that this fact could be shown without invading the privacy of the jury room and relying on the testimony of the jurors (Murdock v. Sumner, 22 Pick. 156, Woodward v. Leavitt, 107 Mass. 453, 460, 471, Simmons v. Fish, 210 Mass. 563, 570, Randall v. Peerless Motor Car Co. 212 Mass. 352, 386) notwithstanding this, we are of opinion that there was no such misconduct on the part of the jury as to require a new trial. In the discussion and deliberation of the jury room, it is to be expected that some examination and inspection will be made of the exhibits in the case. The specimen of roofing material was properly before them and, even if matches were burned to test its inflammability, such action, especially where there is nothing to show the result of the experiment, is not so harmful as to require, as matter of law, the setting

Page 136

aside of the verdict. See Indianapolis v. Scott, 72 Ind. 196, 205; Burho v. Minneapolis & St. Louis Railway, 121 Minn. 326.

Exceptions overruled.

H. Sherman, for the plaintiff.

D. Malone, for the defendant.