Louisville & N. R. Co. v. Studdard

• Court: Georgia Court of Appeals
• Writing for the Court: BELL, J.
• Citation: Louisville & N. R. Co. v. Studdard, 34 Ga.App. 570, 130 S.E. 532 (Ga. App. 1925)
• Decision Date: 18 November 1925
• Docket Number: 16480.
• Parties: LOUISVILLE & N. R. CO. ET AL. v. STUDDARD ET AL.

130 S.E. 532

34 Ga.App. 570

LOUISVILLE & N. R. CO. ET AL. v. STUDDARD ET AL.

No. 16480.

Court of Appeals of Georgia, Second Division

November 18, 1925

Syllabus by Editorial Staff.

Evidence showing circumstantially that, within a few minutes after defendant's locomotive passed, fire arose on right of way, and that there was no other source from which it likely originated, held sufficient to authorize finding that it was caused by sparks from engine.

On proof that fire originating in spark from defendant's engine destroyed plaintiff's building, presumption arose that railroad was negligent in failing to have engine equipped with proper spark arrester, and neglecting to keep right of way clear of grass and growth.

An action lies against a railroad for failure to keep right of way clear of combustible materials, whereby fire from locomotives might be communicated to adjacent property though engine from which fire escaped was properly equipped and prudently handled.

That an infant is so tender in years as to be incapable of qualifying as a witness is no reason for excluding his declarations when they are otherwise admissible as part of res gestæ.

Declarations of a child 4 years of age are not inadmissible merely because of its youth.

Declarations by 4 year old child to its mother, while fire was in progress, that there was fire coming from railroad, "going to burn up here and catch the barn afire," held properly admitted as part of res gestæ.

While as a general rule that which is narrative is apt to carry with it the impress of afterthought, there may be narrative entirely free therefrom, and where statement is narrative, and not explanatory, character of statement may determine question thereof according to circumstances.

Instruction that it was duty of railroad to exercise ordinary care to have effective spark arresters held not error, in view of further charge in same connection.

Where general charge clearly confined jury to consideration of acts of negligence alleged, there was no ground for new trial that in instructions on the presumption arising from proof of damage, jury were not informed that such presumption should relate only to negligence charged.

In action against railroad for loss of buildings by fire, it was not reversible error to exclude spark-arresting screens not shown to be in the same condition as the corresponding apparatus on the particular engine, although it appeared to be part of same type of arrester.

Where plaintiff alleged that fire originated from a particular engine, it was reversible error to admit over appropriate objections, testimony of fireman with reference to emission of sparks by other engines not shown to have been of like construction with particular engine in question.

Error from Superior Court, Walton County; Blanton Fortson, Judge.

Action by Roy Studdard and another against the Louisville & Nashville Railroad Company and others. Judgment for plaintiffs, and defendants bring error. Reversed.

R. L. & H. C. Cox, of Monroe, and Miles W. Lewis, of Greensboro, for plaintiffs in error.

J. C. Knox, of Monroe, for defendants in error.

Syllabus OPINION.

BELL J.

1. In Jarrell v. Seaboard Air Line Ry., 21 Ga.App. 415 (2), 94 S.E. 648, this court said that--

"It is clear that the decision of the Supreme Court [in Seaboard Air Line Ry. v. Jarrell, 145 Ga. 688, 89 S.E. 718] was distinctly predicated upon the fact that there was uncontradicted evidence that the two engines which passed shortly before the fire was discovered were properly equipped with spark arresters, wherefore the circumstantial evidence offered to show that the fire was caused by sparks emitted from an engine of the defendant company was not sufficient to 'reasonably establish the theory relied upon, and to preponderate to that theory, rather than to any other reasonable hypothesis.' "

2. Evidence to the effect that a locomotive engine of the defendant passed near the plaintiff's property, and showing circumstantially that within a few minutes thereafter a fire arose in the grass and other combustible matter on the defendant's right of way at a point by which the engine had passed, and that there was no other source from which the fire likely originated, was sufficient to authorize a finding that it was caused by a spark or sparks emitted from the engine as alleged. Southern Ry. Co. v. Herrington, 128 Ga. 438 (3), 57 S.E. 694; Greene v. Central of Ga. Ry. Co., 130 Ga. 375, 60 S.E. 861; Gainesville, etc., R. Co. v. Edmondson, 101 Ga. 747, 29 S.E. 213; Southern Ry. Co. v. Pace, 114 Ga. 712, 40 S.E. 723; Davis v. Bellah, 29 Ga.App. 409, 116 S.E. 30; Atlantic Coast Line R. Co. v. McElmurray Bros., 14 Ga.App. 196 (3), 80 S.E. 680.

3. Upon proof that the fire originated in a spark emitted from the defendant's engine, and that it spread to and destroyed or damaged the plaintiff's building, the presumption arose that the defendant was negligent in both particulars alleged--namely, in failing to have the engine "properly equipped with a proper spark arrester," and in neglecting to keep its right of way cleared of grass and growth "which were likely to be ignited by fire and sparks from said engine." Southern Ry. Co. v. Thompson, 129 Ga. 367 (3), 58 S.E. 1044; Atlantic Coast Line R. Co. v. Davis, 5 Ga.App. 214 (2), 62 S.E. 1022; Atlantic Coast Line R. Co. v. McRee, 11 Ga.App. 790, 76 S.E. 152.

4. Even assuming that the defendant's evidence conclusively rebutted the presumption of negligence with respect to the spark arrester, although it was not shown that it was the best of its kind in general use (see, in this connection, Southern Ry. Co. v. Smith, 21 Ga.App. 814, 195 S.E. 328), the jury were authorized to find that the defendant was negligent in failing to keep its right of way clear of combustible materials whereby fire from its locomotives might be communicated to the adjacent property, and "an action will lie for negligence in this respect, though the engine from which the fire escaped was properly equipped and prudently handled." Atlantic Coast Line R. Co. v. Davis, 5 Ga.App. 214 (2), 62 S.E. 1022. The evidence authorized the verdict.

5. That an infant is so tender in years as to be incapable of qualifying as a witness is no reason for excluding declarations made by him, when they are otherwise admissible as part of the res gestæ although it might be improper to admit the declarations of one so lacking in the comprehension of passing events as to make his exclamations and observations in reference thereto altogether unreliable. Mitchum v. State, 11 Ga. 615 (4); 22 C.J. 451, § 541, and citations....