Southern Railway Co. v. Black , 141 Ga. 35 ( 1913 )

Hill, C. J.

(After stating the foregoing facts.) 1. This is one of the cases where the defendant can neither “heap coals of fire upon the head” nor cast .them upon the property of its neighbor without making reparation in damages therefor. It was alleged that the acts complained of were carelessly, negligently, and wantonly done, to the consequent injury and damage of the plaintiffs in the sum of $1,843.30. The jury found, in effect, that the defendant 'was guilty of one or more of the acts of negligence alleged against it, and thus caused the loss and damage to the plaintiffs as claimed; and after a careful review of the whole case, we think the allegations of the petition and the evidence in support thereof were sufficient to'authorize the verdict. It is strenuously insisted that ine petition, even as amended, is too indefinite and vague to be the basis of recovery in this case. But to this we can not agree. The substance of the petition and of the amendment is set out in the foregoing statement of facts. We are quite clear that the amendment is not subject to the criticism urged against it. ' In the ease of Bittick v. Georgia &c. Railway Co., 136 Ga. 138, 139-140 (70 S. E. 1106), Mr. Justice Lumpkin well and aptly said: “The presiding judge thought that the allegations in regard to the operation of the engine and the improper use of the exhaust or blower, so as unnecessarily to cause the sparks which set fire to the plain-tiffs’ property to be thrown out, were insufficient. In this we can not agree with him. What were the plaintiffs required to allege? Were they bound to have the knowledge of an expert engineer, and state with minute particularity how the exhaust or blower of the engine ought to have been used, and how it was used? Were they oDliged to know and allege whether the engineer pulled the wrong lever, or whether he pulled it too rapidly or too slowly, or too far, or whether he turned a wrong wheel or crank ? Or to state whether, at the place where the sparks were emitted, he should not have used the exhaust blower at 'all, or whether he used it excessively? It will be readily seen that if, by special demurrer, the plaintiffs could De forced to allege exactly the way in which the engineer caused the exhaust or blower to unnecessarily throw out sparks, and would then be confined to the specific allegation made, and held to be unable to recover if such detailed statement were disproved, although in fact the engineer- did negligently and improperly operate the blower in some other way so as to unnecessarily cause sparks to be thrown out upon the plaintiffs’ property, an almost impossible burden would be placed upon them.”

The rule as to the liability of a railroad company for leaving-combustible matter on its right of way is laid down in the case of Southern Ry. Co. v. Thompson, 129 Ga. 367 (58 S. E. 1044). It was there held (8th headnote): "If the company is wanting in ordinary care in allowing grass, weeds, rotten wood, and other combustible material to accumulate on its right of way, and as a result thereof damage by fire occurs, this would also furnish a ground for holding the company liable.” In Brown v. Benson, 98 Ga. 372 (25 S. E. 455), it was held: "There being evidence from which the jury might have inferred that the plaintiffs’ woods were burned by a fire originating from sparks which escaped from a locomotive operated by a servant of the defendant, and ignited straw and other combustible material on the railroad right of way, and that the fire thus started burned continuously until it reached the plaintiffs’ land, it was error to grant a nonsuit.” And see Georgia Railroad v. Lawrence, 74 Ga. 534; 13 Am. & Eng. Ene. Law, 511, 512: From the authorities cited we conclude that the petition set forth a cause of action, and that the amendment to the petition was sufficiently definite to withstand the objection urged against it.

2. Error is assigned because the court allowed one of the plaintiffs to testify (after having testified that he passed the point of the fire and saw an engine switching at this point.a short while before the fire): "I felt anxious about it, because just a few days before that my son had extinguished a fire from a passing train.” The ground of objection is that the testimony is immaterial and irrelevant. We think that where the plaintiffs sought to show negligencé on the part of the railroad company because of defective equipment of its engine, etc.,' and the company sought to show its diligence as to such equipment by evidence tending to prove that it was in good condition, the statement, taken in connection with its context, and in view of the objection presented, and the purpose for which it was received, was admissible as explanatory of the conduct of the witness.

3. The court charged the jury as follows: "The defendant company says that it was not negligent; that the fire did not occur in that way, and for that reason it ought not to be required to pay anything as damage, and, further contending, says that if it did, the company used all ordinary and reasonable care and diligence to prevent the burning, and in ho event is it liable for anything to the plaintiff.” It is insisted by the defendant that its sole defense was that the fire was not occasioned by its locomotives, and that this charge of the court had the effect of converting "a direct straightforward issue of fact upon which the defendant relied . . into a vague, uncertain, and unsympathetic ‘double-barreled defense’ under which defendant could not successfully appeal to a jury.” The plaintiffs alleged that the fire was caused by the negligence of the defendant. The paragraphs of the petition charging negligence were denied in toto by the defendant. Evidence tending to show negligence in the equipment of the engine and in its operation was offered by the plaintiffs, and rebutting evidence as to these matters was delivered by employees of the defendant. The issue as to whether the defendant originated the fire, and the issue as to whether it was guilty of negligence if it did, were both involved in the pleadings and the evidence; and there is no merit in the criticism of the extract from the charge above quoted.

4. The fourth ground of the motion for a new trial was not referred to in the brief of counsel for the plaintiff in error, and will not be considered. The remaining 'assignments of error are-without substantial merit. The evidence was sufficient to support the verdict, and the court committed no error in overruling the motion for a-new trial.

Judgment affirmed.

'All the Justices concur.