Tinney v. Central of Georgia Ry. Co.

• Decision Date: 07 February 1901
• Citation: 30 So. 623,129 Ala. 523
• Parties: TINNEY v. CENTRAL OF GEORGIA RY. CO. [1]
• Court: Alabama Supreme Court

30 So. 623

129 Ala. 523

TINNEY v. CENTRAL OF GEORGIA RY. CO. ^[1]

Supreme Court of Alabama

February 7, 1901

Appeal from circuit court, Shelby county; John Pelham, Judge.

Action by Canzada Tinney against the Central of Georgia Railway Company. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Tyson and Sharpe, JJ., dissenting.

This was an action brought by the appellee against the Central of Georgia Railway Company to recover damages for the destruction by fire of the plaintiff's sawmill and its equipments, which fire was alleged to have been caused by sparks emitted from a passing engine on the defendant's railroad. The complaint contained two counts. The first count is sufficiently stated in the opinion. The second count charged that there was lying near the sawmill of the plaintiff, and upon the right of way of the defendant, some inflammable and combustible material; that the sparks from the engine passing on the defendant's road fell upon this combustible material, igniting it; and that from this fire sparks were conveyed to the sawmill. Under the opinion on the present appeal, it is unnecessary to set out the demurrers to the plaintiff's complaint. On the trial of the cause, the plaintiff introduced evidence tending to show that immediately after a train on the defendant's road had passed by the plaintiff's mill, the mill shed nearest the railroad track was discovered to be on fire, and that, being unable to extinguish this fire, the whole mill of the plaintiff was destroyed. This mill was not far removed from the defendant's track. This was substantially all the evidence introduced by the plaintiff as to the way the fire originated. The defendant introduced no evidence. Upon the introduction of all the evidence for the plaintiff, the court, at the request of the defendant, gave to the jury the following written charge: "If you believe the evidence in this case, you will find your verdict in favor of the defendant." The plaintiff duly excepted to the giving of this charge. There were verdict and judgment for the defendant. The plaintiff appeals, and assigns, among other rulings of the trial court, the giving of the general affirmative charge for the defendant.

J. W Bush, for appellant.

John London, for appellee.

McCLELLAN C.J.

The complaint contains two counts. Defendant, the railway company, demurred to each count. We are apprised of the trial court's action on these demurrers only by the following memorandum in the transcript, apparently copied from the bench notes of the trial judge: "March 30th, 1899. Defendant's demurrers to 1st count of plaintiff's complaint are overruled, and defendant's demurrers to 2d count of complaint are sustained." This is not a judgment on the demurrers, and will not support assignments of error. Blankenship v. Owens (Ala.) 27 So. 974 and cases there cited.

The case was tried on the first count of the complaint, and the evidence as to the point at which the fire originated or started, viz. on the roof of plaintiff's sawmill demonstrates that plaintiff could not have proved the case laid in the second count, which charged that the fire was first communicated to combustible material on the ground, and thence to her property. The first count charges that fire was communicated from a passing engine of defendant to plaintiff's property, and destroyed it, the precise averments being: "*** Defendant's train of cars was passing along on or about its usual schedule time, and was so carelessly and negligently operated that sparks of fire from the locomotive drawing said train set fire to and destroyed the following property; *** and plaintif...