Barrett v. Southern Ry. Co

• Decision Date: 07 February 1930
• Docket Number: (No. 19879.)
• Citation: 151 S.E. 690,41 Ga.App. 70
• Parties: BARRETT et al. v. SOUTHERN RY. CO.
• Court: Georgia Court of Appeals

41 Ga.App. 70

151 S.E. 690

BARRETT et al.

v.SOUTHERN RY. CO.

(No. 19879.)

Court of Appeals of Georgia,

Division No. 2.

Feb. 7, 1930.

(Syllabus by Editorial Staff.)

Error from Superior Court, Whitfield County; C. C. Pittman, Judge.

Action by Anna Barrett and others against the Southern Railway Company. Judgment for defendant, plaintiffs' motion for new trial overruled, and plaintiffs bring error. Reversed.

Mitchell & Mitchell, of Dalton, for plaintiffs in error.

Sam P. Maddox and Maddox, Sapp & Maddox, all of Dalton, for defendant in error.

Syllabus Opinion by the Court.

STEPHENS, J. [1] 1. A person owning land with valuable improvements thereon near a railroad track is under no duty to the railroad company to keep his own premises free from combustible trash and debris, so as to prevent the spread of fire which might be set out from passing locomotives. Atlantic Coast Line R. Co. v. Davis & Brandon, 5 Ga. App. 214, 62 S. E. 1022.

2. The mere negligence of a person who has suffered injury as a result of the negligence of another will not, as a matter of law, without reference to its degree as respects the negligence of the other person, and without reference to its character as proximately contributing to the injury, bar a recovery. Lime-Cola Bottling Co. v. Atlanta & West Point R. Co., 34 Ga. App. 103(2), 128 S. E. 226.

3. On the trial of a suit against a railroad company to recover for damage to improvements on the plaintiffs' premises adjoining its track, which were caused by fire which, it was alleged, the defendant had negligently permitted to be set out by its trains, a charge by the court which instructed the jury that if ordinary care required the plaintiffs to keep these premises free from such inflammable material, and they failed to exercise such ordinary care, they could not recover for any damage thus caused, although the defendant may have been negligent in the manner alleged, was error. The charge excepted to was as follows: "If ordinary care and caution would require the plaintiffs in this case to plow their fields and orchard and keep the filth down upon it, so that it would not be exposed to fire that might originate either on the right of way of the Southern Railway Company, or elsewhere, and they fail to do that—that is, if ordinary care required them to keep the premises free from sage and weeds, and keep them from accumulating on it, and they failed to do that—then they could not recover, even though the defendant company and its agents may have been negligent and may have failed to use ordinary care."

4. It is the duty of a railroad company, which operates engines that might set out fire along its track, to exercise ordinary care to keep its track and right of way free from combustible material which might become ignited and transmit fire to adjacent property. Where the railroad company fails to exercise ordinary care in this respect, it may be liable for damage by fire resulting to adjacent property proximately resulting from this negligence, although the company may have exercised the required care and diligence in the manner of operating its trains. Atlantic Coast Line R. Co. v. Davis & Brandon, 5 Ga. App. 214, 62 S. E. 1022, supra. The request to charge contained in ground 2 of the amendment to the motion for a new trial was adjusted to the pleadings and the evidence, and, not being covered by any matter in the charge given and having been timely made, its refusal was error.

5. A person who by his own act creates a fire on his own premises is under a duty to adjacent property owners to exercise ordinary care to prevent the spread of the fire to the adjacent property, and where he negligently fails to exercise this duty, and his negligence is the proximate cause of damage to the adjacent property, he is liable to the owner in damages therefor. The request to charge contained in ground 3 of the amendment to the motion for a new trial was adjusted to the pleadings and the evidence, and not being covered by any matter in the charge given and having been timely made, its refusal was error.

6. Since the plaintiffs' petition confines their right to a recovery upon the alleged negligence of the defendant solely as it respects the fire as having originated from the operation of the defendant's trains, and since the evidence adduced upon the trial, which tended to establish as a fact that the fire originated other than from the operation...