Central Railroad & Banking Co. v. Murray , 93 Ga. 256 ( 1894 )

Judgment reversed,.

Murray sued tbe railroad company for damages sustained by the setting out of fire from its locomotives. He obtained a verdict, and a new trial was granted, which judgment was affirmed. 90 Ga. 88. At tbe second trial the jury found for tbe plaintiff $700. A new trial was denied, and tbe defendant excepted to this ruling, and to tbe overruling of a demurrer.

Tbe declaration alleges that about March, 1890, tbe defendant, by negligent running of its train and throwing out and emitting sparks, set on fire tbe stubble land adjacent to plaintiff’s woodland, which fire spread and destroyed much of the growing timber on tbe woodland and damaged other timber to the value of $1,500, burnt up and destroyed tbe fencing on bis pasture land to the value of $500, whereby he was deprived of the use of the pasture of the value of $250, and burnt and destroyed the leaves and litter upon said lands, to his damage $250. In another count it is alleged that the defendant so negligently kept its road that it allowed stubble and other litter, easily ignited, to remain on its right of way, and negligently allowed said litter to be set on fire, which spread from the right of way upon adjoining lands and was thereby communicated to plaintiff’s land where it burnt and destroyed the timber, fencing, pasture and leaves and litter, in the manner and to the extent above stated. The special grounds of demurrer were, in brief, that the allegations as to damage done the land were too general, vague and indefinite to authorize a recovery; that there was no specification as to the number of trees burned or damaged, or their respective values, and no specification 'of the quantity or value of the leaves and litter, so as to enable the defendant to take issue as to these alleged injuries; it being contended that if it were not shown that the land was depreciated in value by the burning, then there was no damage.

The motion for new trial alleges that the court erred in allowing witnesses for the plaintiff to testify that the damage done to him by the burning of the trees was $2 per acre, and $3 per acre, defendant objecting on the ground .thatthe actual damage could not be estimated in this way; that the testimony was too general and indefinite, and was mere opinion without such knowledge as would authorize the jury to-act upon it. Also, that the court erred in allowing testimony going to show the damage to the plaintiff instead of showing the damage to the land, judging from its value immediately before and after the injury, defendant insisting that this was the true measure of damage, and not the particular special value of the trees as they were growing on the land, or the leaves and the trash as they lay on the ground. Also, that the court erred in charging the jury that in determining the amount of damage sustained by plaintiff they should look to the quantity and value of the timber, trees growing on the land considered as trees, and timber, without regard to the effect upon the value of the land, at the time. And, that the court erred in refusing to-charge: “ The true test of the damage done to the trees and timber on the land of the plaintiff, leaves, grass and litter on the land (not including rails in the fence), is the difference in the value of the land just before the fire and its value just after the fire; and if the value of the land was not diminished by reason of the injury to the trees, timber, leaves, grass and litter by the fire, then the plaintiff' is not entitled to recover anything on account of the injury by the fire.”

Steed & Wimberly and John R. Cooper, for plaintiff’ in error. Hardeman, Davis & Turner, contra.