
    A. J. Tyler v. The Chicago & Northwestern Railway Company, Appellant.
    1 Evidence: value ok grass. In an action against a xailroad for damages for negligently destroying grass land by fire, statements of witnesses that the grass land in question was the best in the county, and tending to show the value of the grass in question, were admissible, though some of them were based on knowledge of similar pastures instead of actual knowledge of the grass destroyed. Though this testimony was, in some respects, objectionable, it was not prejudical.
    2 Setting fire. The evidence of a witness as to fires other than that in question, but seen near the railway soon after the engine which is claimed to have set the fife in question had passed, and that he went to them at once, but did not see any person or thing Which could have caused the fire, except the engine, is admissible.
    4 5 Appeal: harmless error. The exclusion of the entries in the inspection book in which the condition of railroad locomotives on the days of inspection are noted is not prejudicial in an action involving the condition of an engine, where the witness who made them testified positively to the facts in regard to the condition of the engine, which the entries show.
    8 Estoppel by oondhct. Defendant cannot complain of testimony elicited upon cross-examination of its witness in response to questions put to him in consequence of questions equally objectionable, asked by the defendant; especially when it is not prejudical.
    
      Appeal from Tama District Court. — Hon. G. W. Burn-ham, Judge.
    Monday, May 31, 1897.
    Action at law to recover for damages from, fires alleged to have been caused by negligence on tfie part of tfie defendant. Tfiere was a trial by jury, and- a verdict and judgment for tfie plaintiff, Tfie defendant appeals. —
    Affirmed,
    
      
      Hubbard & Dawley for appellant.
    
      Struble & Stiger for appellee.
   Robinson, J.

In July, 1894, the defendant operated a railway through a farm in Tama county which was owned by the plaintiff. On the sixteenth day of. that month, and again on the twenty-sixth, fires burned over portions of the farm, and injured blue grass- and timothy which were growing thereon, and burned part of a fence. The fires started on or near the defendant’s right of way, and the plaintiff claims that they were started by locomotive engines of the defendant; that the engines were out of repair, were not supplied with ■the best-known appliances to prevent the escape of sparks, and were not operated with reasonable care. The answer denies negligence, and avers due care on the part of the defendant.

I. A witness named Fife testified that he was on the plaintiff’s grass land July 18; that its condition was good, excepting along the creek, and he thought that from that time it was worth one dollar per acre per month. He also stated that the season was very dry, and that he saw other pastures- in that looality about the same time. He -was then permitted to state, notwithstanding objections of the defendant, that the plaintiff’s pasture was better than any he had seen in that locality, or any other in the year 1894. Amos Brooks, after showing an experience of ten years in farming, stated that he had seen the land in question, but not in the year 1894, and that he had farms in the same locality. He was then asked to state “what grass land, best timothy and blue grass, was worth per acre last year (1894), — good fair pasture land.” He answered, over the objection of the defendant, that “it would be worth a dollar per month per acre just for the grazing season, not including the winter, •month®. I have seen the land in question. It is the best grass land we have in the county.” The statement oí Fife as to what «pasture® he had seen was rather indefinite, and the estimate of Brooks as to value was evidently not based upon actual knowledge of th'e grass which was destroyed, but upon hi® knowledge of pastures of a similar character. The testimony of the two witnesses together tended to show the value of the grass in question, and, although it was in some respects objectionable, the defendant was not prejudiced by it.

II.' The appellant claims that the court erred in permitting one Howdyshell to testify in regard to fires other than those in question claimed to have been set by ian engine of the defendants, and claims that there was not sufficient testimony on that point to justify its submission to the jury. The witness testified to having seen fires near the defendant’s railway track soon after the engine which is claimed to have set the fires in question passed; that one of the fires he saw was in his own meadow, and- that he went to' it at •once, hut did not see .any person or thing which could have caused the fire, excepting the engine of the defendant. We think there was sufficient evidence on that point to authorize its submission to the jury.

III. W. T. Haynes, a resident of Tama county, and a farmer, testified for the defendant that the latter part of August, 1894, he placed cattle in a pasture near that in question; that they were in fair condition at that time; -and that there was no grass- when he took them •out. He was asked in regard to 'their condition when he took them out, but objections to- the question a-nd answer were sustained. The condition of the cattle at that time was wholly immaterial, and the answers sought were properly rejected. The -witness named was 'asked by the plaintiff on cross-examination the following: “If the grass- upon this ground was of that character and quality that it would make a blaze that would travel so fast that a person trying to keep up with it would tire out in his attempt to put it out, then what would you say as to the value of the grass?” An objection of the defendant was overruled, and the witness answered, “My 'opinion would be that it would-be worth fifty cents per acre.” The witness, on direct examination, bad testified on the'supposition that the plaintiff’s pasture contained two hundred and sixty-one acres.; that -one hundred head o-f cattle were pastured in it during the summer; that -one -hundred and sixty acres of it were burned over about July 26, and the- dry grass then burned; and that it would not have been worth more than fifty cents per month more during the remainder of the -season If it had not been -burned than it was after it was burned. ITe had also testified: “If, on July 26 this pasture had been very short and entirely dry, not more than an inch or two high, and ■that when it was -set on fire it turned a blaze two or three inches high and run over the ground, that they could- follow right -along in the rear of the fire, and put it out with shovels, without getting burned, or anything of that kind; if it was seed pasture as here described, I would not give to exceed fifty cents per acre for it.” After the witness had testified on -cross-examination.as stated, he further testified from -personal -observation that the value of the land would not have been more than fifty cents per acre for the remainder of the- season. The question -asked on cross -examination which we have set out was -indefinite, uncertain, and not justified by any issue in the case, but it see-ms to have been- put to the witness in consequence of questions equally objectionable, asked by the -defendant, and, in view of other testimony which the witness gave, his answer to that question could not have prejudiced the defendant.

IY. A witness named Lavalley testified that he was stack inspector of the defendant at Bo-one when the last fire in question occurred; that his -duties were to inspect the a:sh pans, dampers, front ends, nettings, and stacks of the defendant’s locomotive engines; that all engines brought into the house were inspected before they went out, and that the date of each inspection and the condition of the engine inspected, whether in good or bad order, were recorded in the inspection book; that he had the book for July, 1894; that it showed inspections made by himself on the twenty-second and twenty-fifth, and one made by a man named House on the twenty-seventh, of engine No. 712, which is alleged to have set the fire on the twenty-sixth; and that the witness inspected the netting on the twenty-fifth; and that at that time it was in good condition. He was then asked the meaning of the words, “Netting good, stack good, ash pan good,” written opposite Ms name on the twenty-fifth; but an objection of the plaintiff to the question was sustained. The witness testified quite fully in regard to the method of inspecting engines, the life of a netting, and the means- by which it was repaired. He also stated that he had inspected the engine in question on the first and third days of August, and found it to be-in good condition, and that he made a record of the inspections thus made. He stated further that he had no personal recollection of the inspections, but testified as to them from the entries made in the inspection book, and that the entries were true. House did not testify. The defendant offered in •evidence so much of the inspection book a,s showed the inspection of engine No. 712 on- the twenty-second and twenty-fifth days of July, but -an objection made thereto by the plaintiff was sustained. An objection to so much of the book as showed the inspection of the engine on the first and third days of August was also sustained. The appellant complains of these rulings.

Records of a character somewhat similar to those in question are sometimes admissible in evidence. Thus, in Donovan v. Railroad Co., 158 Mass. 450 (33 N. E. Rep. 584), a train sheet prepared, by employes of the defendant, which showed the movement of its trains, was held competent evidence in its behalf, on the ground that there was no reasonable possibility that it was intentionally made incorrect; that all known circumstances concerning it favored its accuracy; that the sheet was not an accidental memorandum; that it was made by persons acting in the line of their duty, and in the usual course of employment, under conditions which tended to make the entries correct; that the train sheet, the entries, and the messages from which they wex*e made, were acts rather than declaration's, done before any controversy had arisexx, when all concerned had no ixxterest except to know and ¡state the trxxth. In State v. Brady, 100 Iowa, 191, we held that the records of ticket offices showing the daily sales of railway tickets was admissible in evidence on. the trial of a person who was ¡accused of cheating by false pretexxses in pretending to have paid charges on account of poor persoxxs, including the purchase for them of railway ¡tickets, which he did xxot in fact pay. The records thus held to be admissible ¡against the defendant were made by a ticket agent in the ordinary course of business, under conditions and circumstances which tended to preclxxde error, and to secxxre entire accxxracy of statement. Neither the railway company nor its agent had any interest in the prosecxxtion by the state, and there was nothing in the case to cast any doubt upon the correctness of the reports. In Huston v. City of Council Bluffs, 101 Iowa, 33, we held that a record of the Dxiited States weather bureau was admissible in evidence, for the reason that it was official, made by a proper person, in the discharge óf a duty imposed upon him by law. We held in Taylor v. Railway Co., 80 Iowa, 435, that a record of the inspection of engines like that in question was not competent evidence. Some of the members of this court, as it is now constituted, are not fully convinced of the correctness of that holding. Therefore we neither approve nor disprove it, but base our conclusions upon the ground) that the witness Lavalley testified positively to the facts which the entries he had made showed, and the defendant could not have been prejudiced by the exclusion of the entries, if it be true that they were admissible. Nor was it important, for the same reason, to show the meaning of the words used in the entries. That was necessarily included in the testimony which the witness gave.

Y. ■ The appellant complains of the refusal of the court to give certain instructions asked, and criticises portions of the charge given. Some of the instructions refused assumed to be true, claims which were in dispute, and others were immaterial. The charge given to the jury fairly submitted the issues involved in the case, and the evidence justified the verdict. The judgment of the district court is affirmed.  