Inman v. Elberton Air Line R. Co.

• Decision Date: 04 January 1893
• Citation: 16 S.E. 958,90 Ga. 663
• Parties: INMAN et al. v. ELBERTON AIR LINE R. CO.
• Court: Georgia Supreme Court

16 S.E. 958

90 Ga. 663

INMAN et al. v. ELBERTON AIR LINE R. CO.

Supreme Court of Georgia

January 4, 1893

Syllabus by the Court.

1. The evidence warranted the verdict.

2. It being alleged that the burning of the plaintiff's property was caused by sparks which escaped from one of two engines described in the declaration, by reason of the defective condition of the engine, and the negligent manner in which it was operated, the refusal of the court to admit evidence that other engines of the defendant besides these two, and not shown to be of like construction, had at other times emitted sparks at or near the same place, is not ground for a new trial.

3. The controlling issue in the case being whether or not the fire complained of originated from sparks emitted by a locomotive of the defendant, and the evidence showing clearly that it did not so originate, and consequently that the defendant was not liable, charges based on the hypothesis of negligence on the part of the plaintiff, either contributing to or causing the injury, though not authorized by the evidence, will not require the reversal of a judgment denying the plaintiff a new trial. The issue being as stated, the erroneous charges probably did not influence the jury; or, if they did, they did not mislead as to the result; and, the verdict being manifestly right, it should not be set aside.

Error from superior court, Hart county; HAMILTON McWHORTER, Judge.

Action by S. M. Inman & Co. to recover the value of a quantity of cotton burned by defendant. There was judgment for defendant and plaintiffs bring error. Affirmed.

R. J Jordan and W. L. Hodges, for plaintiff in error.

Emmett Womack and A. G. McCurry, for defendant in error.

SIMMONS J.

1. The action was against the railroad company for the value of certain cotton alleged to have been burned upon a platform a few feet from the defendant's track by sparks which escaped from one of two locomotives described in the declaration, on account of the defective condition of the engine, and the negligent manner in which it was operated. The verdict was in favor of the railroad company, and the plaintiffs made a motion for a new trial, which was overruled, and they excepted.

The evidence as to the cause of the fire was wholly circumstantial. It was shown that a few minutes before the fire was discovered two locomotives of the defendant passed the platform on which the cotton was situated, and a witness testified that he saw the smoke of one of them fall back over some of the cotton. This was the only evidence tending to connect the defendant with the burning. On the other hand, it was shown that a strong wind was blowing past the platform towards the engines, and carrying the smoke away from instead of in the direction of, the cotton; also that the smoke from a stationary engine at a cotton gin on the other side of the platform had been blowing in the direction of the cotton about 25 or 30 minutes before the fire was discovered, and for some time before that. The cotton was on the south side of the platform. The railroad track was at the east side, 25 or 35 feet from it, and ran north and south. The cotton-gin engine was southwest of it, a distance of about 200 feet, and the arm of the smoke stack pointed northward. Numerous witnesses testified as to the direction of the wind, and all of them agreed that it came from the southwest, and according to some of them it was blowing "fiercely," and the smoke could not have been carried from the locomotives back to the cotton on the platform. One of the witnesses stated that he came to town on the day of the fire, about 10 o'clock in the forenoon, and got out of his buggy at the southwest end of the platform, where the cotton was situated, and that the wind was blowing the smoke from the cottongin engine in his face and towards the cotton that was burned; that cinders and ashes were falling on his clothes, and all around him. He remained in town about an hour and a half, and when he left the smoke and cinders were still blowing from the gin engine. The fire was discovered about half past 2 that afternoon. Other witnesses testified that sparks from the gin engine had fallen on them as far as 175 and 250 feet from the engine, and on one occasion had set fire to trash near where the cotton was burned. No one testified as to having seen any sparks or cinders escape from the defendant's locomotives on the day of the burning. The burden was upon the plaintiffs to establish by a preponderance of evidenceth at the fire was communicated from one of these locomotives. They showed at most a possibility that it came from that source. On the other hand, this was shown to be exceedingly improbable, if at all possible, while it was not only possible, but altogether probable, that the fire was caused by sparks from the cotton-gin engine. We think the evidence not only warranted, but demanded, the verdict.

The condition or management of the locomotives, which the plaintiffs claimed to be negligent, though it may have tended to show a possibility that sparks escaped from them on this occasion, would not in any other respect count against the defendant, unless it was satisfactorily established that sparks from that source did set fire to the cotton. The plaintiffs would have no right to complain of such negligence unless it was shown...