16 Ga. App. 504 | Ga. Ct. App. | 1915
The third headnote only needs elaboration. J. B. McElmurray sued the Atlantic Coast Line Bailroad Company and the Charleston & Western Carolina Bailway Company jointly for damages, and the essential averments of his petition are as follows:
"1. That the defendant the Charleston & Western Carolina Bailway Company is a railroad corporation owning and operating a line of railway in said county, and having an office, an agent, and a place of business in the city of Augusta in said county; that the defendant the Atlantic Coast Line Bailroad Company is a railroad corporation having an office, an agent, and a place of business in the city of Augusta in said county.
“2. That the plaintiff, at the time of the injuries hereinafter complained of, was, and is now, the owner of a farm of 795 acres, situate in said county and known as ‘Goodale farm.’
“3. That the defendant the said Charleston & Western Carolina Bailway Company’s line of railway traverses petitioner’s farm from west to east, a distance of a mile and 'a half, and then crosses the Savannah river on a bridge in which there is a draw.
“4. That the defendant the said Atlantic Coast Line Bailroad Company operates, and did so operate at the time hereinafter stated, its trains over the tracks of the said Charleston & Western Carolina Bailway, with the knowledge and consent of said Charleston & Western Carolina Bailway Company.
"6. That on the 20th day of November, 1911, an engine being operated by the Charleston & Western Carolina Railway Company on its line of railway, running through said farm, negligently emitted live sparks and cinders, which set fire to the right of way of said Charleston & Western Carolina Railway Company, which said fire was communicated to the farm of petitioner and burned over an area of one acre, on which was growing a native vetch which reseeded itself, and damaged petitioner six dollars, and burned seven large cocks of hay, containing one and° three fourths tons of the value of fifteen dollars per ton; that on the 22d day of November, 1911, an engine being operated by said Charleston & Western Carolina Railway Company on its line of railway, running through said farm, negligently emitted live sparks and cinders,which set fire to the right of way, which said fire was communicated to the land of petitioner, burning over an area of two> acres, on which was growing a native vetch which reseeded itself, to the damage of petitioner of twelve dollars; that on the 1st day of December, 1911, an engine being operated by said Charleston & Western Carolina Railway Company on its line of railway, running through said farm, negligently emitted live sparks which set fire to the right of way, which said fire was communicated to the land of petitioner, and burned over an area of ten acres, on which was growing a native vetch which reseeded itself, to the damage of petitioner of six dollars per acre, and consumed six large cocks of hay containing one and one half tons of the value of fifteen dollars per ton, and caused petitioner to expend $2.40 in payment of men to fight said fire; that on December 3, 1911, an engine being operated by said Charleston & Western Carolina Railway Company on its line of railway, running through said farm, negligently emitted live sparks which set'fire to the right of way, which said fire was communicated to the land of petitioner, burning over an area of one acre, on which was growing a native vetch which reseeded itself, to the damage of six dollars.
"7. That at the time of the fires complained of in said sixth paragraph the season was dry, and the said Charleston & Western Carolina Railway Company permitted large quantities of dry grass, weeds, trash, 'and underbrush to gather upon its said right of way, and negligently allowed said inflammable and combustible ma
“8. That the engines of said Charleston & Western Carolina Eailway Company which set out the fire complained of in said paragraph 6 of said petition were defective and dangerous, not being properly equipped with safe and sufficient spark-arresters and safe and sufficient devices and appliances for preventing the emission of live sparks and cinders, and that the said engines were * negligently operated, in that an unnecessary amount of steam was applied to said engines, thereby causing the emission of large and unnecessary quantities, of live sparks and cinders, which said sparks and cinders set fire to the said right of way and was communicated to the field of petitioner adjacent to said right of way.
“9. That the spark-arresters of the engines of the said Charleston & Western Carolina Eailway Company were insufficiently and improperly constructed to prevent large sparks of fire from issuing from said smoke-stacks, and the engineers in charge of said engines were negligent in operating said engines, in that they caused said engines to exhaust and emit live sparks of fire and cinders at the place where said combustible and inflammable material had been allowed to accumulate on said right of way.
“10. That on February 17, 1912,- an engine of the defendant the Atlantic Coast Line Bailroad Company, which was being run over the road of the Charleston & Western Carolina Eailway Company,'negligently emitted live sparks, which set fire to the dry grass, on which was growing a native vetch which reseeded itself, and burned over an area of two and three quarters acres, to petitioner’s damage of six dollars per acre; that on March 20, 1912, an engine, which was being run over the road of the Charleston & Western Carolina Eailway Company, negligently emitted live sparks which set fire to the dry grass on petitioner’s farm, on which was growing a native vetch which reseeded itself, and burned over one acre, to petitioner’s damage six dollars.
“11. That the engines which set out the fire complained of in said tenth paragraph of said petition were defective and dangerous, not being properly equipped with safe and sufficient spark-arresters and safe and sufficient devices for preventing the emission of live sparks and cinders, and that said engines were negligently
'“12. That the said spark-arresters on the engines which set out the fires complained of in said tenth paragraph were insufficiently and improperly constructed to prevent live sparks of fire from issuing from said smoke-stacks, and the engineers in charge of said engines were negligent in operating said engines, in that they caused said engines to exhaust and emit live sparks and cinders at the place of said dry grass.
“13. That the engines which set out the fires complained of in the said tenth paragraph were being operated at a dangerous and unnecessary rate of speed, thereby causing the emission of large and unnecessary quantities of live sparks and cinders, which set fire to the farm of petitioner.
“14. That on January 14, 1913, an engine of the Atlantic Coast Line Railroad Company, which was being run over the road of the Charleston & Western Carolina Railway Company, negligently emitted live sparks which set fire to the dry grass on petitioner’s farm, on which was growing a native vetch which reseeded itself, and burned over an area of ten acres of the value of six dollars per acre, and burned twenty tons of hay of the value of seventeen dollars per ton; that on February 13, 1913, an engine, which was being run over the road of the Charleston & Western Carolina Railway Company, negligently emitted live sparks which set fire to the dry grass on petitioner’s farm, on which was growing a native vetch which reseeded itself, and burned over an area of three acres, to petitioner’s damage six dollars' per acre; that on October 16, 1913, an engine, which was being run over the road of the Charleston & Western Carolina Railway Company, negligently emitted live sparks which set fire to the dry grass on petitioner’s farm, on which was growing a native vetch which reseeded itself, and burned over an area of one half acre, to petitioner’s damage three dollars; that on November 2, 1913, an engine of the Charleston & Western Carolina Railway Company negligently emitted live sparks which set fire to the dry grass on petitioner’s farm, on which was growing a native vetch which reseeded itself, and burned over an area of one half acre, to petitioner’s damage $3; that on November 12, 1913, an engine of the Charleston & Western Carolina
, “15. That the engines which set out the fires complained of in the said fourteenth paragraph of said petition, were defective and dangerous, not being properly equipped with safe and sufficient spark-arresters and safe and sufficient devices and appliances for preventing the emission of live sparks and cinders, and said engines were negligently operated, in that an unnecessary amount of steam was applied to said engines, thereby causing the emission of large and unnecessary quantities of live sparks and cinders, which said sparks and cinders set fire to the dry grass on the farm of petitioner and to the right of way of said Charleston & Western Carolina Railway Company, which said fires were communicated to the field of petitioner adjacent to the said right of way.
'“16. That the engines which set out the fires complained of in the fourteenth paragraph were being operated at an unnecessary and dangerous rate of speed, thereby causing the emission of large and unnecessary quantities of live sparks which set/ out the fires more fully set forth in paragraph fourteen of this petition.
“17. That the spark-arresters on said engines which set out the fires complained of in said fourteenth paragraph were insufficiently and improperly constructed to prevent live sparks of fire from issuing from said smoke-stacks, and the engineers in charge of said engines were negligent in operating said engines, in that they caused said engines to exhaust at the point of the dry grass on petitioner’s farm, and not at some other point, where there was less danger of fire being caused by the emission of the sparks.
“18. Petitioner further shows, by way of aggravation, that in November, 1910, the Charleston & Western Carolina Railway Company negligently permitted its right of way to get in a foul condition, permitting large quantities of dry grass, weeds, trash, and underbrush to gather upon the same, and that an engine of said Charleston & Western Carolina Railway Company set fire to said right of way, wliich said fire was communicated to the farm of
“19. Petitioner further shows, by way of aggravation, that in December, 1910, an engine of the Atlantic Coast Line Railroad Company, which was being operated over the line of the Charleston & Western Carolina Railway Company, negligently emitted live sparks of fire, which set fire to petitioner’s farm and damaged petitioner in the sum of $1,378.59, and the plaintiff has received a verdict for said amount.
. “20. Your petitioner shows that by reason of the facts aforesaid he has sustained actual damages of six hundred and seventy-one and 70/100 dollars, and that, by reason of the aggravating circumstances, that he is entitled to two thousand dollars additional damages, to deter said defendants from a repetition of their said negligence.”
To this petition the defendants demurred as follows: “(1) Because the allegations of negligence are mere conclusions of the pleader, and are not accompanied by the facts so as to enable the court to determine whether or not negligence existed, as claimed. (2) Because there is a misjoinder of causes of action. (3) Defendants demur specially to paragraphs 6 and 7 of the petition, because the plaintiff fails to allege how the fire in question was communicated to the farm of petitioner. (4) Defendants demur specially to paragraphs 8 and 9, because the plaintiff fails to allege facts on which it may or may not appear to the court that the spark-arrester complained of was not safe and sufficient to prevent the issuing of sparks, and what was the defect in said sparkarrester. (5) Defendants demur specially to paragraphs 10 and 11, because plaintiff fails to allege facts showing wherein the engines of the Atlantic Coast Line negligently emitted live sparks, and facts showing wherein the spark-arrester was insufficiently and improperly constructed, or what was the unnecessary and dangerous rate of speed in question. (6) To paragraph 14, because the facts showing the negligence complained of on the occasion in question, mentioned in paragraph 14, are not set out. (7) To paragraph 15, because plaintiff fails to allege facts showing how the engines referred to were defective and dangerous, or what was the character of the spark-arrester used, and what would have been a
The learned counsel for the plaintiffs in error strongly and ably contends that the petition presents no cause of action for punitive damages. The cases which he cites, however, do not convince us of the soundness of his position. In Chattanooga Railroad Co. v. Liddell, 85 Ga. 482 (11 S. E. 858, 21 Am. St. R. 169), which was an action against the railroad company for injuries to a passenger from the derailing of a coach on a defective track, it was held that it was error to charge that “if the evidence disclosed that the company was grossly negligent, the plaintiff would be entitled to recover ‘what we call punitive damages to punish them for that negligence ;’ the evidence of negligence not being sufficient to authorize a charge of punitive damages, or if so, such damages being [should be] given, not as a punishment, but to deter the wrong-doer from repeating the trespass.” And in the decision in that case (p. 495) it is said, “exemplary damages should not be awarded for such injury, unless it is the result of wilful misconduct of the employees of the company, or of that reckless indifference to the rights of others which is equivalent to an intentional violation of them. . . ‘The act must have been done under such circumstances as show a disregard for the rights of others, or an intention to set at defiance the legal rights of others, or the ordinary obligations of society.’ Under these rules, which seem to us to be sound, we do not think the evidence of negligence in this case was sufficient to authorize the court to charge the jury that they might find punitive damages. Even if it was we would still hold, under the rul
In Southern Ry. Co. v. O’Bryan, 119 Ga. 147 (45 S. E. 1000), the first headnote is as follows: “To authorize the imposition of punitive or exemplary damages there must be evidence of wilful misconduct, malice, fraud, wantonness, or oppression, or that entire want of care which would raise the presumption of a conscious indifference to consequences. Under the facts disclosed by the record it was error to charge upon the subject of such damages.” And in that case (p. 149) Justice Cobb said: “There was nothing shown by the evidence in the present case which warranted the imposition of punitive damages. The negligent act of the company in carrying the plaintiff beyond her station was not sufficient. . It is doubtful if the evidence warranted a finding that the conductor knew of the improper conduct of the soldiers. But granting that he did, one of the plaintiff’s witnesses testified that ‘the conductor did all he could with them; he couldn’t do anything with them.’ . . The evidence discloses nothing which would indicate any wanton or wilful disregard of the rights of the plaintiff.”
In Southern Ry. Co. v. Davis, 132 Ga. 812 (65 S. E. 131), the third headnote is as follows: “In an action for damages for a personal injury, based on negligence alone, and in which, under the
In Southern Ry. Co. v. Nappier, 138 Ga. 31 (74 S. E. 778), the fifth headnote is as follows: “Where, in a suit for a personal in
All' of these decisions which hold that, before punitive damages can be recovered, the element of malice, fraud, wantonness, or oppression must be present, recognize that if the act is done under circumstances which show a wanton disregard for the rights of
In National Folding Box &c. Co. v. Robertson, 125 Fed. 524, it was said that "A person may be regarded as acting wantonly who acts without regard to propriety or the rights of others, or is reckless of consequences and yet without settled malice.” And in Birmingham Ry. v. Powell, 136 Ala. 232 (33 So. 875), it was said: "That degree of recklessness, with a conscious knowledge of its probable harmful consequences, constitutes that wantonness which in law finds its equivalent in wilful or intentional wrong.” In Western Union Tel. Co. v. Lawson, 66 Kan. 660 (72 Pac. 283), it was said: "Wantonness as authorizing exemplary damages does not mean necessarily malice, but a reckless disregard of the rights of others.” In the language of the learned counsel for the defendant in error in the case at bar: “If the defendant railroad company had negligently inflicted injury on the plaintiff by shooting him on fifteen different occasions, or had fifteen times destroyed his barn by negligent blasting, on separate occasions, or had fifteen times negligently destroyed his dam, on different occasions, or had negligently broken his enclosure fifteen times, on separate occasions, would not this show such a careless indifference to consequences 'as to amount to malice, wantonness and aggravation? And, if so, is it any defense to say the injury inflicted on plaintiff was not occasioned in any one of the modes set out above, but by fires negligently set out? The result to the plaintiff is the same in whichever way the damages were inflicted, and the aggravation consists, not so much in the circumstances surrounding the act, but in the negligent repetition of the same act.” We can suppose other negligent acts by a defendant, which, while not subjecting him to punitive damages for a single tort, might by frequent repetition show such careless indifference to consequences, and to the rights of others as to make him liable for punitive damages. For instance, if A. and B. pass each other daily, and A. negligently stumbles against B. and injures him, A. would only be liable to B. for B.’s actual damages. But if, every time they met, or every other time, or once a week, or once a month, A. should negligently stumble against B. and injure him, would not this constant repetition of A.’s tort raise a jury question as to whether B. was entitled to punitive damages to deter A. from continuing his
It is contended by the learned counsel for plaintiff in error that as McElmurray bought a farm adjacent to the railroad and raised a hay-crop thereon, he took upon himself the risk of his hay being destroyed by fire from the engines of the railroad, but as said by this court in Albany &c. R. Co. v. Wheeler, 6 Ga. App. 270 (64 S. E. 1114), “one who owns property adjacent to a railroad,'and builds his houses, or otherwise locates his property near to the right of way, takes upon himself the risk of injury through fires occasioned by the running of the locomotives with ordinary care and diligence, but he does not take upon himself the risk of fires caused by negligence of the company or its servants.” It may be that upon the trial of the case the evidence submitted will not authorize % recovery for punitive damages, but we are now discussing the petition only,- and the demurrer thereto, and in our judgment the petition in this particular is not subject to the demurrer attacking it.
The petition not being subject to demurrer, except, as to the misjoinder, the judgment overruling the demurrer is affirmed with
■ Judgment affirmed, with direction.