K. & T. Ry. Co. v. Stafford (Tex. Civ. App.) | 100 feet distant from the track. This evi31 S. W. 319; Gainesville, etc., Ry. Co. v. Ed-dence tended to show a habit of negligence mondson, 101 Ga. 747, 29 S. E. 213; Louis- on the part of the company about that time ville, etc., Ry. Co. v. Marbury L. Co., 125 Ala. and in that vicinity. It also tended to es237, 28 South. 438, 50 L. R. A. 620; Mo., K. tablish the possibility, capacity, and tendency & T. Ry. Co. v. Fulmore (Tex. Civ. App.) 29 of defendant's locomotives of the same class S. W. 688. generally to emit sparks and set fires. It tended to establish either negligent construction and equipment and maintenance of its engines, or else negligent handling and operating of the same. The train in pulling out of Osburn on the morning of August 4, 1907, was on a downgrade, and was pulling only about 300 tons. It was shown by defendant's employés that this engine was capable of pulling 1,500 tons. It therefore stands admitted that it was not overloaded. It left Osburn at the rate of about 30 miles an hour. Witnesses generally testified that the engine was working hard, and throwing smoke and sparks very freely. Whether this was the exercise of reasonable care in its operation was properly a question for the jury. One witness who was present at the depot, and who had at sometime past been a brakeman, testified that in his opinion the engineer threw the throttle wide open as he pulled out of the station; that the engine worked as if that had been done. The engineer testified that he had the throttle half open. The inspector who testified that he had inspected the smokestack and spark arrester that morning at Wallace says that it was in good condition. He also stated that he did not know that the engineer stopped at the roundhouse to get a bolt, and that, if he had inspected it, there would have been no bolt needed. He said, however, that it was not his business to inspect the mechanical part of the engine, and that he had nothing to do with the eccentric bolts. The engineer testified that he stopped in the lower yards at Wallace that morning before pulling out in order to get a bolt which he needed. It appears from the evidence of the different witnesses that a bolt called an "eccentric bolt" was either broke or missing in this engine. Taking all these circumstances, we think there was sufficient evidence tending to show actual negligence either in the maintenance and equipment of the engine and appliances or in its operation and management to go to the jury on the general issue of defendant's negligence. The evidence in this case is by no means satisfactory or convincing to us, but under the rule we think there was such a conflict as the jury were entitled to settle and determine, and that their de termination is binding on this court.

Appellant urges that in the trial of the case it succeeded in completely and conclusively rebutting the presumption of both negligent construction and operation of its engine, and that it became at once the duty of the court to instruct the jury as a matter of law to return a verdict in its favor. It must be conceded, we think, that if for the establishment of negligence or want of care on the part of the railroad company the plaintiff sees fit to rest solely upon the presumption of law which arises from the setting of the fire, and the railroad company successfully rebuts that presumption by clear and satisfactory evidence showing that the engine that is alleged to have caused the fire was of proper and modern construction, and equipped with approved devices and appliances for arresting sparks and preventing the escape of fire and was in good repair, and was operated and managed with prudence and ordinary care and diligence, the defendant is entitled to an instructed verdict in its favor. Smith v. N. P. Ry. Co., 3 N. D. 17, 53 N. W. 173; Spaulding v. N. W. Ry. Co., 30 Wis. 110, 11 Am. Rep. 550; Id., 33 Wis. 582; Woodward v. Chicago Ry. Co., 145 Fed. 577, 75 C. C. A. 591; Menominee River Sash & Door Co. v. Milwaukee & N. R. Co., 91 Wis. 447, 65 N. W. 176; Railway v. Packwood, 59 Miss. 280; Rosen v. Chicago, etc., Ry. Co., 83 Fed. 300, 27 C. C. A. 534; Louisville, etc., Ry. Co. v. Marbury L. Co., 125 Ala. 237, 28 South. 438, 50 L. R. A. 620. In such case it would have as a matter of law successfully defeated plaintiff's right of recovery because negligence is the gist of all such ac tions. 3 Elliott on Railroads (2d Ed.) § 1221. This proposition cannot be determined solely upon the failure of the plaintiff to produce rebuttal evidence. It may be rebutted or actual or positive negligence may be disclosed by the defendant's own witnesses either on direct or cross-examination. In the case at bar the plaintiff did not produce any rebuttal testimony. In the first place, however, the plaintiff, as we have above recited, showed by a number of witnesses that within a comparatively short period of time immediately preceding the fire defendant's locomotive had emitted great quantities of sparks and live coals. One witness stated that he had seen live coals as big as the end of his finger emitted and thrown as much as 30 to 50 feet distant from the track, and other witnesses testified to extinguishing fires as far as

The judgment should be affirmed, and it is so ordered. Costs in favor of respondent.

SULLIVAN and STEWART, JJ., concur.

printed upon light blue paper, containing WHITLA v. QUARLES, Clerk and Ex-officio the words "other questions," and thereon

3. APPEAL AND ERROR (8 731*)-ASSIGNMENT | Supreme Court only. Henry Howard, Jr., OF ERROR-SUFFICIENCY. for appellee.

Under Supreme Court rule 11 (80 Pac. viii), requiring each error to be particularly specified, an assignment of errors, that "the court erred in overruling defendant's motion for a new trial on the grounds and for the reasons therein stated," was insufficient to present the objection, not sufficiently stated in the motion for a new trial, that a referee failed to separately state in his report his findings of fact and conclusions of law.

[Ed. Note. For other cases, see Appeal and Error, Dec. Dig. § 731.*]

4. WITNESSES (§ 255*) - EXAMINATION-REFRESHING RECOLLECTION PARTNERSHIP Books.

In an action between partners for an accounting, plaintiff may use the partnership books to refresh his recollection as to details of the partnership business, though the entries in the books were made by defendant, who was

present in court.

[Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 881, 882, 887, 888; Dec. Dig. 255.*]

CAMPBELL, J. This is an action for an accounting by one partner against another. The cause was referred by the court to a referee for finding the issues both of law and fact. The referee reported findings for plaintiff and recommended judgment in his favor. The report was approved by the court, and judgment went accordingly. The defendant's motion for a new trial was overruled, and from the final judgment he is here with his appeal.

1. In the district court of the Second judicial district, comprising the county of Denver, there are five divisions, each of which is presided over by a single judge. This action was pending in division 3, presided over by Judge Palmer. The order of reference was made by Judge Mullins, presiding in division Defendant says that it is void because not made by the judge of that division of the In an action between partners for an accourt in which the action was pending. In counting, if it was error to permit plaintiff, in the absence of a statute, we take it the pretestifying as to details of the partnership busi-sumption which attaches to the regularity of ness, to refresh his recollection from partnership books, the entries in which were made by defendant alone, the error was harmless where the books were in evidence.

5. APPEAL AND ERROR (§ 1048*)-REVIEW-2. HARMLESS ERROR - EXAMINATION OF WIT

NESSES.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 4142; Dec. Dig. § 1048.*]

the proceedings of a court of general jurisdiction would obtain here, and, if there is no affirmative showing to the contrary, the order of reference would be presumed to be regular, and that the judge of the Second, was re

6. APPEAL AND ERROR (§ 1033*)-ERROR FA-quested to act in the premises by the judge

VORABLE TO APPELLANT.

The failure of a referee to find on a particular issue presented by plaintiff's petition is equivalent to a finding against plaintiff on that issue, and defendant cannot complain that such issue was not disposed of by the referee.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4052, 4059; Dec. Dig. 1033.*]

of the Third, division. Our statute is also in harmony with this presumption. Aside from this, when the referee's report was filed in division 3, Judge Palmer, presiding therein, expressly found, before he approved it, that the order of reference was made at his request and during his absence by Judge Mul

in defendant's contention.

7. APPEAL AND ERROR (§ 1033*)-REVIEW-lins of the Second division. There is no merit HARMLESS ERROR-FINDINGS BY REFEREEFAILURE TO DISPOSE OF PARTICULAR ISSUES. Defendant cannot complain that a referee failed to find on an issue presented by plaintiff's petition, where the judgment rendered against defendant did not include any award under the omitted issue.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 4052, 4059; Dec. Dig. § 1033.*]

2. Defendant's chief objection seems to be that the report of the referee is fatally defective, in that it does not contain any findings of fact at all, and that the alleged, or supposed, findings of fact, are blended with conclusions of law. Section 212, Mills' Ann. Code, under which the reference was had, provides that the report of the referee shall state "the findings of fact and conclusions of law separately and in a clear and intelligible manner." The referee's report in this particular is not a model, and we are not pre

8. APPEAL AND ERROR ($ 1051*)-REVIEWHARMLESS ERROR-ADMISSION OF EVIDENCE. Where there is sufficient competent eviIdence to support a judgment for plaintiff, error of the court in permitting plaintiff to read from documents which had not been properly identified before the court, and to introduce incompetent evidence to impeach defendant's testi-pared to say that it is free from the critimony, was not ground for reversal.

[Ed. Note. For other cases. see Appeal and Error, Cent. Dig. 88 4161-4170; Dec. Dig. 8 1051.*]

Appeal from District Court, City and County of Denver; P. L. Palmer, Judge.

Action by H. D. Wellington, Jr., against E. W. Alexander. From a judgment for plaintiff, defendant appeals. Affirmed.

Thos. F. Ashworth, for plaintiff in court below. Leslie E. Hubbard, for appellant in

cisms made by defendant's counsel; but it does not necessarily follow that defendant is entitled to a reversal because of a defective report. Section 212, supra, further provides that, upon the filing of the referee's report with the clerk, "judgment shall be entered thereon in the same manner as if the action had been tried by the court, unless objected to by either party by filing a motion for a new trial," as provided in section 214, which section says that the motion for a new trial

4. The plaintiff was permitted to read certain exhibits, which were copied from the partnership daybook and salesbook which the copartners used in the conduct of their retail business. Defendant says this was improper, because plaintiff did not keep these books or know anything about them, and they were not, and could not be, used by him to refresh his recollection; the entries having been made by the defendant, who was present and in court. We do not perceive the force of the objection. The books in question from which the exhibits were unquestionably taken, were books of the copartnership, and the entries were made by defendant himself. They certainly were admissible against him, as his own written declarations. But if it was irregular for plaintiff to read from exhibits, instead of from the books themselves, it was harmless error, for the books were in evidence, and no point is made that the exhibits were not accurate reproductions.

shall contain the same grounds "as upon the of plaintiff, and his report was approved verdict of a jury or the decision of the court," by the county court, and judgment went for and that the court may grant this motion, plaintiff. Upon the hearing before the ref"or may modify the findings of the referee eree on the appeal pending in the district and enter judgment accordingly, when it is court, this officer permitted plaintiff, over manifest from the evidence reported what the defendant's objection, to introduce in evifindings and judgment should be." In pur- dence the transcribed testimony of witnesses suance of these requirements, defendant, who testified before the referee in the county within the proper time after approval of the court. The ruling was based upon the fact report, filed his motion for a new trial, and that the witnesses in question had departed the objection to the report then made, and from this state and were living outside therewhich he renews here, is the one set forth as of in a sister state. The only objection which the first ground of the motion for new trial seems to be seriously urged is that the showin the following language: "That said ref- ing of the nonresidence of the witnesses was eree's findings and report are not in accord- inadequate. The showing was clearly suffiance with said order of court appointing the cient. referee in this case, and that his findings and report are against the order of said court, and not in compliance with the order appointing the referee." The first assignment of errors, the only one which by any possibility can be construed as covering this objection, reads: "The court erred in overruling defendant's motion for a new trial on the grounds and for the reasons therein stated." Assuming then that, by adoption, the first ground of the motion for a new trial is defendant's first assignment of error, we are clear that under it he is not in a position to be heard upon the particular objection we are asked to pass upon. In section 217 of the Code are enumerated the causes for which a new trial may be granted. The first is "irregularity in the proceedings of the court, referee or jury, * or any order of the court or referee * by which either party was prevented from having a fair trial." Under this comes defendant's objection. The first ground for a new trial specified in the motion is wholly insufficient. It does not specify wherein the findings and report are not in accordance with the order of reference, or in what respect they are against the order, or in what particular they do not comply therewith. The assignment is also wholly insufficient as a specification under rule 11 of this court (80 Pac. viii), which requires each error to be particularly specified. Under a somewhat similar provision of the New York Code, cases have been cited by appellee which hold that such an objection is not available under a motion for a new trial, but should be taken by way of exception, so as to give the court an opportunity to reopen the case and order the cause returned to the referee for correction, or to make the necessary findings of its own motion. Whether that holding is applicable under our Code we are not required to say, for we are clearly of opinion that by his failure, both before the referee and the district court, to call attention to the particular defect now complained of, defendant has waived his right to press the point here.

3. This action was instituted in the county court, and a reference was had there, the

5. Defendant says that the referee did not make a finding as to all the issues of fact raised by the pleadings. It seems that the complaint charges, among other things, that defendant fraudulently and wrongfully attempted to deceive plaintiff and conceal from him $400 or thereabouts of the profits and convert the same to his own use. We do not find that the record supports this contention. As we read it, the referee was of opinion that the evidence was not sufficiently clear and preponderating to warrant a finding in favor of plaintiff on this issue. This would seem to be equivalent to a finding against plaintiff; but if it be true. as defendant contends, that there was no finding at all, plaintiff might complain; but, since the judgment as rendered against him did not include any award under this issue, and as he claimed nothing affirmatively thereunder, defendant is not hurt by such omission.

6. The most important objection which defendant raises with respect to the rulings upon evidence pertains to the examination of plaintiff. The plaintiff produced in court and read from an exhibit which seems to be a bill

deed, we do not think defendant has any just reason to complain of the amount of the judgment as rendered, but that the referee and court might well have found for plaintiff in a larger sum. Had the judgment been in favor of defendant, it is doubtful if, under the legitimate evidence produced, it could be upheld.

Considering the entire record, we are of opinion that no error prejudicial to defendant was committed by the trial court. Its judg. ment is therefore affirmed. Affirmed.

GABBERT and BAILEY, JJ., concur.

NATIONAL MUT. FIRE INS. CO. ▼.
DUNCAN.
(Supreme Court of Colorado. Nov. 11, 1908.
Rehearing Denied Dec. 15, 1908.)

RANTY.

An answer, in an application for fire insurance, made a part of the policy, as to the dimensions of the insured building, is not within the warranty thereof as to the truthfulness statement of the condition, situation, value, ocof the answers touching a "description and cupation and title of the property."

[Ed. Note. For other cases, see Insurance, Cent. Dig. § 589; Dec. Dig. § 274.*] 2. INSURANCE (8 274*)-AVOIDANCE FOR MISREPRESENTATION-APPLICATION.

from dictation of plaintiff's attorney, who obtained his information from the plaintiff and an expert witness who, plaintiff says, obtained the data from certain books, bills, invoices, papers, and other memoranda which as defendant says, were not identified before the court, and that the exhibit was made up, not immediately after the transactions which were mentioned therein, but long after they occurred. Another objection also strenuously urged is to the ruling of the court permitting plaintiff to introduce a stenographer's report of certain portions of the testimony of defendant taken before the referee in the county court, for the purpose of contradicting and impeaching defendant Alexander upon the second hearing. It is somewhat difficult to determine just what the record discloses with reference to these two objections. From a technical standpoint it might be difficult to sustain these rulings of the court. We shall not, however, follow counsel in their elaborate and redundant arguments in support of 1. INSURANCE (§ 274*) — APPLICATION—Wabtheir respective contentions, or examine or comment upon the vast number of cases which they cite in their support. We observe, however, that Alexander was a party to the action, and the same strictness required in impeaching a mere witness does not in all respects obtain where the witness is also a party to the action, and that, if the evidence admitted is improper for impeachment purposes, it might be competent as responsive to the main issue of fact under consideration. Buddee v. Spangler, 12 Colo. 216-223, 20 Pac. 760. We do not, however, lay any stress upon these observations. it be assumed that the rulings complained of are erroneous, we are satisfied that they ought not to be taken as prejudicial to defendant. The controversy between these parties required an investigation into the affairs of a retail mercantile business which had been carried on for a number of months, and involved an examination of a large number of accounts, books, and papers of the copartnership. An exhaustive investigation was had at the first trial by a referee of the county court, which resulted in favor of plaintiff, and this report met the approval of the county court. After the appeal was taken to the district court, a reference was again had, and the referee again found in plaintiff's favor, and so reported to the district court, and this referee's report was approved. As care ful an examination of the abstract of record as we have been able to make satisfies us that the findings of the referee and the judgment of the district court are right and should be affirmed. We are led irresistibly to the conclusion that if the evidence adduced by plaintiff, to which defendant so earnestly objects, was eliminated from the case, what

If

fire insurance, that the building was 20 by 30 The misrepresentation, in an application for feet, when it was 16 by 24 feet, does not of itself appear material to the risk, and so avoid the policy; but the answer, relying on it as a defense, must state facts showing its materiality, that insured was influenced thereby in issuing the policy, or was injured thereby.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. 589; Dec. Dig. § 274.*] 3. INSURANCE (§ 264*)—AVOIDANCE—WARRAN

TIES-APPLICATION.

An application for insurance being made part of the contract, and statements therein being made warranties, such a statement, whethsubstantially, according to the nature of the er material or not, must be true literally or fact warranted, to allow of recovery.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. § 562; Dec. Dig. § 264.*] 4. INSURANCE (§ 281*)--AVOIDANCE-WARRANTIES-APPLICATION.

Though the statement, in an application for insurance, made a warranty and part of the contract, as to the cash value of the insured building, is one that has only to be substantially opinion as to value of property, so that it is true, there often being a marked difference of enough that the valuation given appears to be a fair and reasonably truthful one, yet such and is stated to be $1,500. rule is not satisfied when the value is only $200,

[Ed. Note.-For other cases, see Insurance, Cent. Dig. $$ 597-600; Dec. Dig. § 281.*] 5. INSURANCE (§ 281*)-AVOIDANCE-WARBANTIES APPLICATION.

Even if the statement of insured, in an application for insurance, as to the value of the property, be merely his estimate, the application reciting, "the value * being estimat

remains is abundantly and legally sufficient to uphold the findings and judgment. In