90 Ga. 663 | Ga. | 1893
1. The action was against the railroad company for the value of certain cotton alleged to have been burned upon a platform a few feet from the defendant’s track, by sparks which escaped from one of two locomotives described in the declaration, on account of the defective condition of the engine and the negligent manner in which it was operated. The verdict was in favor of the railroad company, and the plaintiffs made a motion for a new trial, which was overruled, and they excepted.
The evidence as to the cause of the fire was wholly circumstantial. It was shown that a few minutes before
The burden was upon the plaintiffs to establish by a preponderance of evidence that the fire was communicated from one of these locomotives. They showed at most a possibility that it came from that source. On the other hand this was shown to be exceedingly improbable, if at all possible, while it was not only possible but altogether probable that the fire was caused by sparks from the cotton-gin engine. "We think the evidence not only warranted, but demanded the verdict.
The condition or management of the locomotives, which the plaintiffs claimed to be negligent, though it may have tended to show a possibility that sparks escaped from them on this occasion, would not in any other respect count against the defendant, unless it was satisfactorily established that sparks from that source did set fire to the cotton. The plaintiffs would have no right to complain of such negligence unless it was shown that they were injured by it. But even if it had been showrn that the fire was communicated from one of the locomotives, there was sufficient evidence to uphold a finding that the company exercised all reasonable care and diligence in keeping them in proper condition, as well as in properly managing and operating them at the time and place in question ; and if this was so, the company would not be liable. Outside of the statement of a witness for the plaintiff, that wood-burning engines, as well as “ coal-burners,” needed wire-screens to prevent the escape of sparks, the only evidence as to the condition of the locomotives came from the defendant, and this evidence was to the effect that each of them had a spark-arrester of the latest improved pattern,
2. Error is assigned upon the refusal of the court to admit evidence that other engines of defendant, besides the two alleged in the declaration, had at other times emitted sparks at or near the place of the fire in question ; this evidence being offered to show general carelessness or negligence on the part of the defendant. We think the court was right in declining to admit evidence of this kind. The declaration alleged that one of two particular engines caused the burning, and the engines referred to were distinctly identified. One was the “Nancy Hart” and the other the “Ellen B. Peeples.” It was not claimed that the fire was caused by any other. The question before the jury was whether it was caused by oneof these, and the negligence alleged was negligence in the condition and management of these two. How then could it be material or relevant to show negligence on other occasions and in regard to other engines than these, especially when there was no attempt to show that such other engines were of like construction ? The
In the case of East Tenn., Va. & Ga. Ry. Co. v. Hesters, decided by this coui't at the last term (90 Ga. 11), in which the testimony as to the escape of sparks from engines of the defendant on occasions previous to the fire in question was held admissible, the evidence for the company showed that all the locomotives of the company were kept substantially in the same condition. Besides, in that case there was a general allegation that the fire was caused by the defendant’s engines, and no particular engines were described or identified.
8. Complaint is made that the court erred in charging