Southern Ry. Co v. Herrington

• Decision Date: 20 May 1907
• Citation: 57 S.E. 694,128 Ga. 438
• Parties: SOUTHERN RY. CO. v. HERRINGTON.
• Court: Georgia Supreme Court

57 S.E. 694

128 Ga. 438

SOUTHERN RY. CO.

v.HERRINGTON.

Supreme Court of Georgia.

May 20, 1907.

1. Railroads—Fires Set by Locomotives-Pleading.

When a petition alleged that the plaintiff sustained injury by reason of sparks being emit ted from a locomotive of the defendant, and that the damage "was caused by the carelessness and negligence of the defendant's agents, servants, and employes, " the plaintiff could rely for recovery upon the fact that the engine in question had been negligently handled.

[Ed. Note.—For cases in point, see Cent Dig. vol. 41, Railroads, § 1708.]

2. Same—Measure or Damages.

The charge of the judge in reference to the measure of damages was not erroneous for any reason assigned.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 41, Railroads, § 1737.]

3. Same—Evidence.

The evidence authorized the verdict, and no sufficient reason appears for reversing the judgment.

[Ed. Note.—For cases in point, see Cent Dig. vol. 41, Railroads, §§ 1730-1736.]

(Syllabus by the Court)

Error from Superior Court, Gordon County; A. W. Fits, Judge.

Action by C. C. Herrington against the Southern Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Shumats & Maddox and F. A. Cautrell, for plaintiff in error.

W. R. Rankin and R. J. & J. McCarmy, for defendant in error.

COBB, P. J. Mrs. Herrington sued the railway company for damages claimed to have resulted from a fire communicated to her land from a locomotive of the defendant company. The damages alleged consisted of the destruction of growing timber. The jury returned a verdict in her favor, and the defendant made a motion for a new trial, which was overruled, and it excepted.

1. Complaint is made that the court instructed the jury, in effect, that the company would be liable in the event it should appear from the evidence that it was negligent in the manner in which the engine was run or handled. The assignment of error upon this instruction is that there was no allegation in the petition that the engine was improperly handled, or that there was any negligence in running the same. The petition alleged that the injury "was caused by the carelessness and negligence of the defendant's agents, servants, and employes, and because of defective machinery"; and it was also alleged that the fire was caused by sparks emitted from a passing engine. The allegation in reference to the carelessness of the defendant's servants was very general, but there was no demurrer to the petition. This general allegation was sufficient to put in issue the manner in which the engine was handled, and there was no error in the instructions.

2. The judge charged the jury: "The damages to the plaintiff, if she sustained any, is the difference in the value of the land before and after the fire; that is, how much less was the land worth after the fire than before, having reference to the injury done by the fire? But you may determine this factby ascertaining the value of the timber before and after the fire, and by other facts and circumstances proven in the case, on the question of damages." Error is assigned upon the last clause of this charge, upon the ground that there was no evidence of the value of the timber either before or after the fire, and that the charge gave the jury the right to determine what was the value of the timber if severed from the soil and prepared for market, and does not confine it to standing timber. If the plaintiff was entitled to recover, the measure of damages was the difference between the value of the land as timber land before the fire occurred and its value as timber land afterwards. The value of the land as such, without respect to the timber, may not have been affected by the fire; but she was the owner of timbered land, which, in that condition, had a value, and, if the effect of the fire was to diminish this value, she would be entitled to recover the difference. The character of timber upon the land, the quantity of it, and all such facts and circumstances, were proper matters for the jury to consider...