Central of Ga. Ry. Co. v. Griffin

• Decision Date: 20 November 1951
• Docket Number: 4 Div. 200
• Citation: 55 So.2d 218,36 Ala.App. 292
• Parties: CENTRAL OF GEORGIA RY. CO. v. GRIFFIN et al.
• Court: Alabama Court of Appeals

Page 218

55 So.2d 218

36 Ala.App. 292

CENTRAL OF GEORGIA RY. CO. v. GRIFFIN et al.

4 Div. 200.

Court of Appeals of Alabama.

Nov. 20, 1951.

J. H. Wilkerson, Troy, and Steiner, Crum & Baker, Montgomery, for appellant.

Jas. G. Clower, Troy, for appellees.

HARWOOD, Judge.

This is an appeal from a verdict and judgment in favor of the plaintiff below in a suit claiming damages of the defendant railroad for negligently causing or allowing certain fences, trees, etc. of the plaintiff to be damaged or destroyed by means of a fire, 'communicated from or by means of setting fire to and burning the right of way of railroad adjoining the land of the plaintiff.'

The defendant timely filed a motion for a new trial which was overruled by the court.

The evidence presented by the plaintiff tended to show that on the morning of 17 February 1949 a section foreman of the defendant, with a crew of several men set out a fire on the defendant's right of way on the west side of the tracks for the purpose of burning broom sedge, bushes, etc., that had accumulated on the right of way. The plaintiff's property adjoined defendant's right of way on the east side of the right of way in the general area where the fire was set out.

At 2:00 p. m. fire or fires were burning briskly on plaintiff's property, or on the property adjacent to plaintiff's property. Norton Griffin, one of the plaintiffs, testified that when he arrived on the scene of the fire in the afternoon that: 'We fought it for awhile, and the wind was awful high and it got to jumping forty of fifty feet * * * it was out of control.'

J. M. Green testified that the day of the fire was: 'A very windy day. The wind was high,' and was coming from the northwest or west. He further testified that the season was a dry one.

It is to be noted that a wind coming from the northwest or west would be in a general direction towards plaintiff's land from the railroad.

Mr. Sam Lindsey, a State Forest Ranger, who visited the scene of the fire and helped suppress it, testified that the day was windy.

For the defense Mr. J. B. Parker, the section foreman, testified that on the day in question he began burning a strip on the right of way at about 9:00 o'clock. A strip about 50 feet wide and about a half mile long was burned. Mr Parker testified that he only burned the right of way when a wind is blowing toward the tracks, and that a slight breeze was blowing on the day in question. About 100 to 150 feet was burned at one time, and then the crew would 'come along with shovels or brush and put it out,' and that one man, a 'safety man,' would follow along and put out any fire he might find.

The trash he was burning along the right of way had very few logs in it, a little broom sedge and a few dead bushes.

On cross examination Mr. Parker testified as to the wind that it was 'a slight breeze. It came in gusts kind of often.'

The errors assigned by the appellant raise only two points, i. e., the refusal of the court to give defendant's requested affirmative charge with hypothesis, and the court's action in overruling appellant's motion for a new trial.

We have therefore set out only that part of the evidence necessary to a review of these two points.

It is the appellant's contention that the court erred both in refusing its request for the affirmative charge and in denying its motion for a new trial because there was no evidence tending to show that the fire on the plaintiff's land originated from any fire made by appellant's servants, and further, that if the fire did so originate there was no evidence tending to show negligence on the part of appellant's employees.

It being undisputed that appellant's servants did start a fire on its right of way on the day in question, whether their acts constituted negligence must depend upon the developed facts.

The rule is stated in Robinson v. Cowan, 158 Ala. 603, 47 So. 1018, as follows: 'As appears, and with evident reason, the numerous decisions in other jurisdictions touching the inquiry whether such negligence, to liability, infected the setting out of the fire or the precautions omitted or taken in respect of its control, is very generally a question of fact, embracing in serviceable elements leading to the conclusion of negligence vel non these factors, among others: The character of the substance, whether highly inflammable or not, to be burned; the existence,...