Cent. Of Ga. Ry. Co v. Trammell

• Decision Date: 11 December 1901
• Citation: 114 Ga. 312,40 S.E. 259
• Parties: CENTRAL OF GEORGIA RY. CO. v. TRAMMELL et al.
• Court: Georgia Supreme Court

40 S.E. 259

114 Ga. 312

CENTRAL OF GEORGIA RY. CO.

v.TRAMMELL et al.

Supreme Court of Georgia.

Dec. 11, 1901.

RAILROADS — FIRES — EVIDENCE — ENGINE-EQUIPMENT AND MANAGEMENT — INSTRUCTIONS — APPEAL — INADEQUATE DAMAGES — COMPLAINT BY DEFENDANT — WITNESSES-IMPEACHMENT — CONTRADICTORY STATEMENTS — REQUESTS — REFUSAL —GENERAL CHARGE.

1. There was evidence warranting a finding that the plaintiffs' houses were destroyed by fire communicated by sparks emitted from the defendant's engine, and that the defendant was guilty of negligence in the manner in which the engine was equipped and managed at the time when the fire was thus communicated to the houses.

2. Inasmuch as the engine which it was claimed emitted the sparks which set fire to the plaintiffs' houses was clearly identified by the evidence, a charge which instructed the jury that, if they did not believe this engine had been identified by the evidence, they might consider evidence as to the management and equipment of other engines of the defendant While running by the plaintiffs' houses and going in the same direction as the engine which it was claimed caused the fire, while not adjusted to the evidence, was not calculated to prejudice the defendant to such an extent as to require that the verdict against it should be set aside.

3. That the verdict for the plaintiffs was for a less amount than that demanded by the evidence does not afford the defendant any just cause of complaint.

4. When, independently of the legal presumption arising against a railroad company, there is evidence which would warrant a finding against it, it is proper to refuse to give in charge a request that this presumption is rebuttable, and that testimony of the employésof the company having this effect, "in the absence of anything to discredit and contradict it, cannot be arbitrarily disregarded."

5. In a case of the character disclosed by the present record it is competent to prove, for the purpose of impeaching a witness who has testified that the fire was caused by other agencies than the railroad company, that on the night upon which the fire occurred he expressed a decided conviction that the fire was caused by the railroad company.

6. The propositions announced in the foregoing notes dispose of all of the material questions involved in the present case. The requests to charge which are not dealt with above were covered by the general charge, and there was no error requiring the granting of a new trial.

(Syllabus by the Court.)

Error from city court of Forsyth; W. M.

Clark, Judge.

Action by Trammell & McCowan against the Central of Georgia Railway Company. From a judgment in favor of plaintiffs, defendant brings error. Affirmed.

Hall & Boynton, Cabaniss & Willingham, and E. G. Cabaniss, Jr., for plaintiff in error.

J. B. Williamson and Guerry & Hall, for defendants in error.

COBB, J. Trammell & McCowan brought suit to recover from the railroad company as damages the value of certain buildings owned by the plaintiffs, which it was alleged had been set fire to and destroyed by sparks escaping from one of the defendant's engines. A verdict was returned in favor of the plaintiffs for $4,566.70, and, the defendant's motion for a new trial having been overruled, it excepted. It appears from the record that this is the second verdict which has been returned in favor of the plaintiffs against the defendant, the first verdict having been set aside by the trial judge, and a new trial ordered.

1. Error is assigned in the bill of exceptions upon the allowance of an amendment to the plaintiffs' petition. This objection cannot be considered as no exceptions pendente lite were filed, and the main bill of exceptions was not tendered in time to raise this question. One of the grounds of the motion for a new trial also complains of the allowance of this amendment, but this ground of the motion for a new trial cannot be considered, for the reason that the amendment was at a term of the court preceding that at which the trial was had, even if such a question could be in any case properly raised in a motion for a new trial. Other exceptions taken in the bill of exceptions to the refusal of the court to grant a nonsuit and direct a verdict for the defendant also come too late, but, as the motion for a new trial complains that the verdict is contrary to the evidence, the question as to the sufficiency of the evidence is thus properly brought up for review. The evidence warranted the verdict. It was claimed that a cotton seed house belonging to the plaintiffs was set on fire by sparks emitted from the defendant's locomotive, and that the fire was communicated from this house to other houses belonging to the plaintiffs, situated near the cotton seed house. The evidence on this point was entirely circumstantial, but there was evidence showing that the cotton seed house was located near enough to the railroad track to have been set fire to from the sparks of a passing train; that no fire had been in the house on the day of...