Southern Ry. Co v. Taylor

• Decision Date: 19 March 1948
• Docket Number: No. 31884.,31884.
• Court: Georgia Court of Appeals
• Parties: SOUTHERN RY. CO. v. TAYLOR.

47 S.E.2d 77

SOUTHERN RY. CO.

v.TAYLOR.

No. 31884.

Court of Appeals of Georgia,

Division No. 2.

March 19, 1948.

Rehearing Denied March 30, 1948.

Syllabus by the Court.

1. The assignments of error as applied to the general grounds and the assignments of error pendente lite advance no reason for reversal.

2. (1) The assignments of error to the effect that the court did not require more specifically and definitely the description of the locomotive for the railway company

which was alleged to have set out the fire, is without merit.

(2) Where, as here, the original petition sought a recovery on the ground of damage to specifics because of tortious acts of the railway company causing a fire which damaged growing timber thereon, it was permissible for the court to allow, over objections, a second count seeking a recovery for the diminution in the market value of the land before and after the fire based on the same tortious acts committed on the same premises; where, as here, the plaintiff was required to elect, after the evidence closed, on which count he must rely for a recovery.

(3) After amendment, the overruling of other special demurrers was without error.

3. The assignments of error in special grounds 1, 2, and 3 have no merit.

4. In view of the facts in this case the court did not err in admitting in evidence as a circumstance to be considered by the jury, the cinders.

5. The assignments of error on the excerpts under special grounds 5, 6, 7, 8, and 9 require no reversal.

6.The assignment of error in special ground 10, under the facts of this case, does not show reversible error on the ground that the trial court when he recalled the jury, unduly impressed them to return a verdict.

7. The provisions of the Code, § 94-1108 to the effect that in actions against railway companies for injury to persons or for damage to property, the proof of such injury or damage was inflicted by the running of the locomotive or cars shall be prima facie evidence of the want of due care, becomes inoperative when the railway company introduces evidence in rebuttal of the plaintiff's proof of the allegations of the negligence in its petition; and in such event it is reversible error to charge the provisions of such section. In the instant case the assignments of error in this record are without merit.

Error from Superior Court, Monroe County; Harvey J. Kennedy, Judge.

Suit by J. W. J. Taylor against Southern Railway Company to recover for damage to growing timber on certain described land and damage to dwelling house and saw mill puncheons as result of fire allegedly caused by tortious acts of defendant. To review judgment for plaintiff, the defendant brings error.

Affirmed.

J. W. J. Taylor, whom we shall call the plaintiff, filed his petition seeking recovery from the Southern Railway Company, hereinafter called the defendant, for damage to specifics consisting of growing timber on certain described land and damage to a three room dwelling house and saw mill puncheons. It is alleged that the damaged timber consisted of around 300, 000 to 500,-000 feet of growing timber. It is alleged that the damage to the house was $100; damage to the timber, $3.00 per acre, and the saw mill puncheons $100.00, --making a total of $2,000.00. In the original petition it is alleged that on March 21, 1946, an engine of the defendant "its number unknown to the petitioner, travelling North, did set fire to the weeds, grass and other combustible matter, on both sides of the right of way of the said defendant, and the fire from the said right of way did quickly spread and burn and damage the growing timber on 600 acres of land" as well as damage to the other property specified. These allegations are contained in paragraph 5 of the petition. The acts of negligence alleged in the original petition are:

"(a) In that said defendant company's employees caused sparks to fly from said engine upon the dry grass, weeds, leaves, and other inflammable matter, setting fire to them which spread through the lands of your petitioner, causing the damage herein mentioned;

"(b) In that the said agents and employees of said company failed to put out said fire after the said fire became known to them, or they could have discovered it by the exercise of ordinary care and diligence.

"(c) That they were further negligent in that the engine did not have a sufficient spark arrester to prevent said sparks from coming from said engine and setting fireto said weeds, leaves, grass, and other combustible matter." These are substantially the allegations of paragraph 6 of the petition.

The defendant filed both general and special demurrers to the petition and subject thereto the defendant filed its answer denying all the material allegations of the petition of the plaintiff. The demurrers of the defendant were, first, generally that the petition set forth no cause of action against the defendant. The defendant filed special demurrers to the petition as follows:

"2. Defendant demurs specifically to paragraph 5 of said petition for the following reasons: (a) The time when it is alleged that the fire was set out by an engine of this defendant is not shown with sufficient definiteness to enable this defendant to defend said cause.

"(b) The engine which plaintiff alleges set out said fire is not described with sufficient definiteness as to enable this defendant to defend said cause, nor is said engine sufficiently described elsewhere in said petition.

"(c) The allegations as to the place on the right of way of this defendant where it is alleged that the fire began are too uncertain, vague, and indefinite, to notify this defendant of the plaintiff's contention as to where the fire began or to enable this defendant to defend said cause.

"3. Defendant demurs specifically to paragraph 6 of said petition for the following reasons: (a) Sub-paragraph (a) of paragraph 6 does not show how and in what manner the defendant company's employees caused sparks to fly from the engine therein referred to. Said allegations of negligence in said sub-paragraph are vague, uncertain and indefinite.

"(b) The allegations of sub-paragraph (b) of said paragraph 6 do not set forth any conduct or omissions of this defendant which constitute actionable negligence against it. Said allegations are vague, uncertain, and indefinite, in that they do not state when the defendant knew of said fire, nor how and in what manner the defendant could have discovered the existence of said fire. Said allegations of negligence are in the alternative and meaningless.

"(c) The allegations of sub-paragraph (c) of said paragraph 6 do not allege any actionable negligence against this defendant."

Thereafter, the plaintiff amended his original petition substantially as follows: First, by striking the amount of damages claimed and substituting in lieu thereof $2,970.00; and next by striking 600 acres of land in paragraph 4 of the petition and substituting in lieu thereof 700 acres; and by striking in its entirety paragraph 5 and substituting in lieu thereof a new paragraph to read substantially as follows: That on the date of the fire "about the middle of the day, an engine of the said defendant company, its number unknown to petitioner, pulling a freight train, and travelling North, did set fire to the weeds, grass and other combustible matter on the West side of the right of way of said defendant company where the said right of way adjoins lands of R. L. Williams, and near the lands of Henry B. Harrison, in Monroe County, Georgia, approximately three to four miles North of Dames Ferry, Georgia, and the fire from the said right of way did quickly spread to the property of your petitioner and did burn and damage the growing timber on 700 acres of said land as above described, and did damage a three room house and porch, and did burn and damage a pile of saw mill puncheons. Your petitioner shows that said fire did injury to the said described 700 acres of land to the extent of $4.00 per acres, as a result of burning and killing the stand of young timber thereon and burning, killing and damaging other trees growing thereon, making a total damage of said 700 acres of land $2,800.00. That the pile of sawmill puncheons that was destroyed was of the market value of $80.00, and the damage to the three room house and porch amounted to $90.00, making a total damage of $2,970.-00." And further by adding to paragraph 6 of the original petition three additional specifications of negligence as follows:

"(d) In allowing a large quantity of highly inflammable trash, vegetation, grasses and weeds to accumulate and remain on the right of way of the defendant company adjacent to your petitioner's prop-erty, as well as the property of adjacent land owners to your petitioner;

"(e) In failing to use proper care in operating the engine. (f) In so negligently handling the engine as to cause it to improperly exhaust and throw out fire and sparks upon said combustible trash and dry vegeta-tion, and to ignite the same and to cause the burning of your petitioner's property."

The plaintiff further amended his petition by adding a new count to the petition to be known as count 2. Count 2 is substantially the same as the allegations of the original petition as amended, the only practical difference being that the second count seeks the recovery of damages to the real property because of a diminution in the value of the real property, whereas the original petition sought damages for damage done to specifics. The defendant objected to the allowance of this amendment substantially as follows:

"1. The original petition in said cause sought to recover damages against the defendant railway company by reason of alleged acts of negligence in setting out fire which spread to the lands of plaintiff, destroying certain growing timber on said lands. The measure of damages in the original petition, as it related to the destruction of the growing timber, was for the value of such...