Girardino v. Birmingham Southern R. Co.

Decision Date23 January 1913
Citation179 Ala. 420,60 So. 871
PartiesGIRARDINO v. BIRMINGHAM SOUTHERN R. CO.
CourtAlabama Supreme Court

Rehearing Denied Feb. 14, 1913.

Appeal from City Court of Birmingham; Charles W. Ferguson, Judge.

Action by Frank Girardino against the Birmingham Southern Railroad Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Allen &amp Bell, of Birmingham, for appellant.

Percy Benners & Burr, of Birmingham, for appellee.

DE GRAFFENRIED, J.

A building of Frank Girardino was destroyed by fire. Just before the fire was discovered, a locomotive of the Birmingham Southern Railroad Company passed near the building. The theory of the said Frank Girardino who was the plaintiff in the court below, was that the servants of the said railroad company (the defendant in the court below) who were in charge of said locomotive, while acting within the scope of their employment, so negligently operated the said locomotive as to cause it to emit sparks in dangerous and unusual quantities, thereby setting fire to the building; or that, on account of the improper equipment of the locomotive sparks in unusual and dangerous quantities were emitted therefrom, and that the building was, by such sparks so emitted by the locomotive, set on fire and destroyed. Upon the above theories this suit for damages was brought by the plaintiff against the defendant, and in the suit the value of the burned building was sought to be recovered.

There was evidence tending to uphold the theories of the plaintiff. There was evidence for the defendant tending to show that the locomotive, at the time referred to, was not negligently handled, but, on the contrary, that the defendant's servants properly and skillfully managed it. There was evidence for the defendant, also, that the locomotive was in every way perfectly equipped. The defendant also introduced evidence tending to show that when the locomotive passed the point referred to a large trash pile, near the building which first caught fire, was on fire; and the jury had the right to infer from this evidence that the building was set on fire from the burning trash pile, rather than by sparks from the locomotive.

There was a jury trial and a verdict for the defendant. Thereupon the plaintiff made a motion for a new trial upon the ground of newly discovered evidence. The plaintiff sets up in his motion the fact that he knows but little of the English language; that he resided, at the time of the fire, several miles from the scene of the fire; that he produced on the trial all of the evidence which, by due diligence, he was able to discover before the trial; and that since the trial he has discovered several reputable witnesses who were at the scene of the fire, and who are prepared to testify that no trash pile was on fire before the locomotive passed the ill-fated building.

A new trial is, of course, granted for the sake of obtaining justice. It must be remembered, however, that but for our statutes the granting or the refusal...

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20 cases
  • Fries v. Acme White Lead & Color Works
    • United States
    • Alabama Supreme Court
    • April 18, 1918
    ...So. 307; Southern Hardware & Supp. Co. v. Block Bros., 163 Ala. 81, 50 So. 1036; Wilkinson v. Bottoms, 174 Ala. 122, 56 So. 948; Girardino v. B.S.R. Co., supra; McLeod Shelly Mfg. & Imp. Co., supra; Newton Loan & Banking Co. v. Reeves, 2 Ala.App. 411, 56 So. 255; A.M. Ry. Co. v. Johnson, su......
  • Mobile City Lines v. Alexander
    • United States
    • Alabama Supreme Court
    • April 10, 1947
    ... ... [249 ... Ala. 109] Wm. G. Caffey, of Mobile, D. G Ewing, of ... Birmingham, and F. F. Windham, of Tuscaloosa, for ... appellee ... [249 ... Ala. 108] The ... on Broad Street, which is a main thoroughfare between the ... northern and southern sections of the city. There was a stop ... sign at the northeast corner of the intersection of ... reason therefor is shown.' Girardino v. Birmingham ... So. R. Co., 179 Ala. 420, 60 So. 871. Nor is the verdict ... to be set aside ... ...
  • Birmingham Elec. Co. v. Linn
    • United States
    • Alabama Court of Appeals
    • March 16, 1948
    ... ... 661, 15 So.2d 271; Slaughter v ... State, 237 Ala. 26, 185 So. 373; McLeod v. Shelby Mfg ... & Imp. Co., 108 Ala. 81, 19 So. 326; Girardino v ... Birmingham So. R. Co., 179 Ala. 420, 60 So. 871; Fries ... v. Acme White Lead & Color Works, 201 Ala. 613, 79 So ... 45; King v. West End ... ...
  • Montgomery City Lines v. Hawes
    • United States
    • Alabama Court of Appeals
    • August 22, 1944
    ... ... permissible. Leach v. Bush, 57 Ala. 145; Birmingham ... Ry., L. & P. Co. v. Weathers, 164 Ala. 23, 51 So. 303; ... Alabama Power Co. v. Carroll, 208 ... court, unless a good, legal reason therefor is shown.' ... See also, Girardino v. Birmingham So. R. Co., 179 ... Ala. 420, 60 So. 871; Lamar Life Ins. Co. v. Kemp, ... 30 ... ...
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