Central of Georgia Ry. Co. v. Graves

• Decision Date: 16 March 1926
• Docket Number: 4 Div. 131
• Parties: CENTRAL OF GEORGIA RY. CO. v. GRAVES.
• Court: Alabama Court of Appeals

107 So. 716

21 Ala.App. 280

CENTRAL OF GEORGIA RY. CO. v. GRAVES.

4 Div. 131

Court of Appeals of Alabama

March 16, 1926

Appeal from Circuit Court, Barbour County; J.S. Williams, Judge.

Action for damages by E.H. Graves against the Central of Georgia Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

G.L Comer & Son, of Eufaula, for appellant.

Chauncey Sparks, of Eufaula, for appellee.

BRICKEN P.J.

This appeal is from a verdict and judgment for damage by fire alleged to have been caused by the negligence of appellant.

The first insistence of error is that the court erred in admitting in evidence, over the objection and exception of appellant, a list or memorandum of the articles destroyed by the fire. Appellee, plaintiff, testified that he made the memorandum, and "knew that said stuff was in there." Fairly interpreted, this can mean nothing else than that the witness knew the memorandum to be correct. The rule is that, if the witness testifies that he knows the contents of the memorandum, made by himself, and knows it to be correct, then both the memorandum and the testimony of the witness is legal evidence. Singleton et al. v. Doe etc., 63 So. 949, 184 Ala. 199; Holland-Blow Stave Co. v. Whitman, 97 So. 52, 210 Ala. 109; Foster v Smith, 16 So. 61, 104 Ala. 248.

It is further insisted for the appellant that the evidence of negligence was insufficient to submit the case to the jury thus entitling defendant to the requested affirmative charge. This question would be a serious one but for the positive testimony of plaintiff as to the condition of defendant's right of way at the point where the fire started. The evidence is that the fire started or was first discovered, soon after the passage of one of defendant's trains. Plaintiff testified that--

"At the particular place where the fire started there was on the right of way pine straw and weeds and pines; weeds that had been cut down and were very dry, they were cut down by the section foreman, and this was very inflammable, about as inflammable as could be."

It has been held by this court that to permit such a condition to exist is negligence on the part of the railroad. The exact question is fully discussed and the law clearly stated in the case of Southern Railway Co. v. Dickens, 49 So. 766, 161 Ala. 144; Southern Ry. Co. v. Kendall, 69 So. 328, 14 Ala.App. 242.

If the jury believed the testimony of plaintiff...