Southern Ry. Co v. Puckett

• Decision Date: 12 November 1904
• Citation: 48 S.E. 968,121 Ga. 322
• Parties: SOUTHERN RY. CO. v. PUCKETT.
• Court: Georgia Supreme Court

48 S.E. 968

121 Ga. 322

SOUTHERN RY. CO.

v.PUCKETT.

Supreme Court of Georgia.

Nov. 12, 1904.

RAILROADS—FIRES SET BY LOCOMOTIVES—PRESUMPTIONS;—PLEADING.

1. The statutory presumption of negligence arising from proof that the fire had been caused by the defendant's locomotive was not. rebutted by the testimony of a witness that he knew the defendant had adopted the latest and best improvements in spark arresters, it not appealing that the engines were thus equipped at the time the injury occurred.

2. While a defendant may be liable for an injury inflicted within the period covered by the statute of limitations, there may be circumstances under which he is entitled to know the exact date of the occurrence charged in order to make his defense, but in such a case it is necessary by demurrer or motion to call for particularity of dates.

3. Where no such motion is made, evidence that the fires occurred in November, 1901, was admissible under allegations in the petition that they occurred "on or about October 27 and 28, 1901, " and "at various other dates during 1899, 1900, and 1901."

4. The suit was not against the alienee for damages occasioned by a nuisance constructed by its predecessor in title, but for injuries caused by ditches dug by the defendant, whereby a greater quantity of water was diverted through the existing culvert.

5. The evidence as to the damage from fire and the flow of water was conflicting, but supported the verdict.

(Syllabus by the Court.)

Error from Superior Court, Hall County; J. J. Kimsey, Judge.

Action by Mrs. H. A. Puckett against the Southern Railway Company. Judgment for plaintiff. Defendant brings error. Affirmed.

Mrs. Puckett's petition against the Southern Railway Company contained two causes of action. In one she alleged that in 1899, 1900, and 1901 the defendant, while operating its trains through her farm, carelessly and negligently permitted sparks and fire to escape from its engine, and "while running its trains during the years above mentioned, on or about October 27 and 28, 1901, and at various times during said years, by failing to have proper spark arresters on its engines, set fire to petitioner's woods, fields, and fences, which ruined her pasture, and destroyed some three thousand rails, to her damage $200." There was a demurrer on the ground of failure to state the time more definitely, but there is no ruling on the demurrer in the record. The motion for a new trial assigns as error that the court refused to rule out the evidence of S. J. Puckett that "on November 13, 1901, they burned 584 rails, and November 15th they burned 328 more"; the motion being on the ground that the burning was alleged to have taken place on October 27th and 28th, and plaintiff should not be allowed to prove a burning at a different time. The second count alleged that the company about July 1, 1898, erected across its roadbed, where the ground is on an incline, a large culvert; that the same was erected and is being used by defendant, and was constructed in a negligent manner; that on or about August 1, 1898, the company cut ditches, whereby vast quantities of water were diverted from its natural course, turned the same into the culvert, and when it rains great quantities of water are gathered by the ditches, passing through the culvert, and falling about 15 feet onto petitioner's land, whereby a great gulch 40 feet wide and 8 feet deep has been washed through petitioner's pasture, cutting the same in two, damaging the land, and making it impossible for cattle to pass from one end of the pasture to the other, or to reach the water course formerly used for watering stock. There was a demurrer to this cause of action, but no ruling appears in the record, nor is there any assignment of error thereon. The motion for a new trial assigns as error that the court failed to sustain a motion...