Atlantic Coast Line R. Co. v. Sellars, 34613

• Decision Date: 02 December 1953
• Docket Number: No. 1,No. 34613,34613,1
• Citation: 79 S.E.2d 35,89 Ga.App. 293
• Parties: ATLANTIC COAST LINE R. CO. v. SELLARS
• Court: Georgia Court of Appeals

Page 35

79 S.E.2d 35

89 Ga.App. 293

ATLANTIC COAST LINE R. CO. v. SELLARS.

No. 34613.

Court of Appeals of Georgia, Division No. 1.

Dec. 2, 1953.

Syllabus by the Court.

1. The first special ground of the motion for new trial, complaining of the refusal of the court to exclude certain evidence as to how the plaintiff arrived at the value he placed on the property allegedly destroyed as a result of the defendant's negligence, does not show error harmful to the defendant, and it was not error to overrule that ground of the motion.

2. Where the only issue in the case was whether the defendant negligently permitted fire to escape from its steam engine or locomotive, and whether it negligently permitted fire to be communicated from its right of way to the plaintiff's land and cause certain damage thereon, evidence that the defendant, between the date of the damage and the date of the trial, had replaced its steam locomotive with a Diesel locomotive was not relevant or proper to prove any issue in the case, and should have been excluded on proper motion by the defendant.

3. In a case of the nature indicated by the foregoing headnote, evidence as to a hot box on the train in question and as to burning waste found on the defendant's right of way at the time of the fire was not admissible in the absence of allegations in the petition charging negligence on the part of the defendant in these particulars.

4. The court did not err, in charging on the credibility of the witnesses, in failing to charge in that connection that, in determining where the preponderance of the evidence lies, the jury might consider the number of witnesses, though the preponderance does not necessarily lie with the greater number.

5. There being no issue made as to any law requiring the defendant to keep its right of way free and clear of bark, it was not error for the trial court, even though requested so to do, to refuse to instruct the jury that there was no law requiring that the defendant keep its right of way free and clear of bark.

6. The general grounds of the motion are not considered.

N. L. Sellars sued Atlantic Coast Line Railroad for damages alleged to have resulted from the negligence of the defendant or its servants in permitting fire to get out of the engine of its train which was being operated along tracks adjacent to the plaintiff's property, and from negligence in maintaining a bark and rubbish pile along its right of way adjacent to the plaintiff's property, which bark and rubbish pile communicated the fire from the engine to the property of the plaintiff causing enumerated damages. The defendant answered, admitting the operation of the engine and train at the time and place alleged, but denied that it was guilty of any of the negligence alleged. Upon the trial of the issues before a jury a verdict for the plaintiff in the amount of $2,000 was returned. The defendant made a motion for new trial on the general grounds, which it amended by adding five special grounds. The trial court denied the motion, and the exception here is to that order.

Peacock, Perry & Kelley, Jesse W. Walters, Albany, for plaintiff in error.

Custer & Kirbo, Bainbridge, for defendant in error.

QUILLIAN, Judge.

1. The first special ground of the motion for new trial complains because the court overruled an objection by the defendant's counsel to certain testimony of the plaintiff relative to the value of the growing timber and crops sued for. The following question was propounded to the plaintiff: 'When you speak of the value of your trees, you don't mean to take those little pine trees and sell the--you are speaking of the value they are to your place?' To this question the plaintiff replied: 'Yes, sir, what they will be worth in a few years.' The defendant objected to this testimony in the following language: 'I object to the testimony by the witness stating that the value on the projecting growth of these trees. The law is very clear that such is not the measure of damages, and I object to the question and answer on that ground.'

This ground of the motion cannot, under any view of the case, be said to show harmful error. The plaintiff had previously testified as to the value he placed on the growing pine trees, the Bermuda grass pasture, and the pear trees, which were alleged to have been destroyed by the fire. This question and answer on cross-examination by counsel for the defendant, if it showed anything, showed merely that such previous testimony of the plaintiff as to those values was based on the plaintiff's estimate of the value such things would have had in the future. The admission of this statement by the witness was not erroneous for any reason assigned. Counsel did not object to or move to strike out the previous testimony of the plaintiff relating to the damages he sustained on the ground that this latter testimony showed that such testimony as to value was based upon an erroneous theory, but merely moved the court to strike the statement of the plaintiff that he based his statement of the value of the things destroyed by the fire on what they would be worth in a few years. The court thereafter charged the jury in the following language: 'Gentlemen, the plaintiff in this case seeks to recover for the loss of 2,000 young pine trees and 18 pear trees, which he alleges were destroyed by the fire. Listen carefully to this. If you find by a preponderance of the evidence that the plaintiff has shown that the defendant was negligent and is entitled to recover, then the measure of damages to the young pine and pear trees destroyed, would be the value of the trees destroyed in its then state as attached to the land on which it grew, which value is to be ascertained by evidence as to what the owner of the premises could, under all the circumstances, have realized from the timber destroyed or by appropriating it to use himself, to the extent of any demand for it there might be or his own wants at and about the time of the fire, and by selling to others to the extent of any demand for it which then existed; the value to be reckoned is the worth of the timber as it stood upon the land when it was destroyed, not computing anything additional thereto for the increase which would have resulted from severing it from the realty, removing to the place of use or sale, and putting it in condition to be used or sold. * * * The measure of damages for burning of 20 acres of improved pasture land planted in Coastal Bermuda and 20 acres of unimproved pasture land would be to the extent that the owner could have used or disposed of the pasture grass to supply any demand then existing or near at hand, the measure being the value of the raw material as it lay and grew on the ground, not including the quantity to be paid for any of the material which could not have been used or sold to supply the demand then existing or which arose soon thereafter. I charge you, gentlemen, that the measure of damages as contended by the plaintiff would be the value of the land upon which the improved pasture was before the loss of the pasture or destruction of it, and the value of the premises after the destruction, is the measure of damages to which he contends they are entitled.'

With the evidence in the record and this instruction fresh in their minds, the jury could hardly have concluded otherwise than that the plaintiff's estimate of his...