47 S.E.2d 77 | Ga. Ct. App. | 1948
1. The assignments of error as applied to the general grounds and the assignments of error pendente lite advance no reason for reversal.
2. (a) The assignments of error, to the effect that the court did not require more specifically and definitely the description of the locomotive of the railway company which was alleged to have caused the fire, are without merit.
(b) Where 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, 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 the plaintiff was required to elect, after the evidence closed, on which count he must rely for a recovery.
(c) 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 evidence as to the cinders, as a circumstance to be considered by the jury.
5. The assignments of error on the excerpts under special grounds 5, 6, 7, 8, and 9 require no reversal. *746
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 judge 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 that 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 negligence in his 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.
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 plaintiff. The demurrers were: first, generally, that the petition set forth no cause of action against the defendant; and special demurrers, 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) Subparagraph (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 subparagraph are vague, uncertain and indefinite. (b) The allegations of subparagraph (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 subparagraph (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 $2970; 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 *748 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 traveling 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 sawmill puncheons. Your petitioner shows that said fire did injury to the said above described 700 acres of land to the extent of $4 per acre, as a result of burning and killing the stand of young timber growing thereon and burning, killing and damaging other trees growing thereon, making the total damage to said 700 acres of land $2800. That the pile of sawmill puncheons that was destroyed was of the market value of $80, and the damage to the three-room house and porch amounted to $90, making a total damage of $2970."
And the plaintiff amended 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 property, as well as the property of adjacent landowners 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 vegetation, and to ignite the same and to cause the burning of your petitioner's property."
The plaintiff further amended by adding a new count to the petition to be known as count 2, which 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 *749 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, 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 growing timber.
"2. The amendment as tendered converts the original petition into a cause of action seeking to recover damages for injury to the real estate in the amount of $4 per acre, and for special damages for destruction of specific items of property.
"3. In addition the tendered amendment adds a count to be known as count 2, in which it is sought to recover for damages to the growing timber. Defendant says that the amendment attempts to set up a cause of action for the recovery of damages to the timber on the described premises, and thereby seeks to set up a cause of action which is new and distinct, and hence should not be allowed."
The plaintiff filed a second amendment to its original petition as follows: "1. By striking in paragraph 5 of count 1 the following words, `about the middle of the day an engine,' and inserting in lieu thereof the following, `approximately 12:30 or 1 o'clock p. m., the exact time unknown to your petitioner, a steam engine burning coal.'
"2. By adding after the last word in subparagraph (e) of paragraph 6 of the first count, as amended, the following: `In that the agents and employees of the defendant in charge of the running and operating of its engine caused such engine to throw out unnecessarily sparks of fire which caught and burnt the property of the plaintiff, by the improper and negligent use of the exhaust or blower, and that, if the engine had been operated in a careful manner, and in the exercise of ordinary care and diligence, the emission of sparks would have been prevented.'
"3. By adding after the last word in subparagraph (f) of paragraph 6 of the first count, as amended, the following: `In that the agents and employees of the defendant in charge of the *750 running and operation of its engine were negligent in so handling the throttle and other appliances of the engine as to make it exhaust and emit live coals and cinders.'
"And amends count 2 as follows: 1. By striking in paragraph 5 of count 2 the following words: `about the middle of the day an engine,' and inserting in lieu thereof the following: `approximately 12:30 or 1 o'clock p. m., the exact time unknown to your petitioner, a steam engine burning coal.'
"2. By adding after the last word in subparagraph (e) of paragraph 6 of the second count, as amended, the following:
`In that the agents and employees of the defendant in charge of the running and operating of its engine caused such engine to throw out unnecessary sparks of fire which caught and burnt the property of the plaintiff, by the improper and negligent use of the exhaust or blower, and that, if the engine had been operated in a careful manner, and in exercise of ordinary care and diligence, the emission of sparks would have been prevented.'
"3. By adding after the last word in subparagraph (f) of paragraph 6 of the second count, as amended, the following: `In that the agents and employees of the defendant in charge of the running and operation of its engine were negligent in so handling the throttle and other appliances of the engine as to make it exhaust and emit live coals and cinders.'"
The court allowed the amendments to the petition, overruled the demurrers to the allowance of the first amendment, and overruled the demurrers both general and special to the petition as amended. The defendant duly filed exceptions pendente lite to the judgments overruling its objections to the allowance of the amendments of the plaintiff to his petition, and to the overruling of his demurrers both general and special. The case proceeded to trial before a jury. Evidence was introduced by both parties. After both had closed and before argument, the plaintiff elected to rely on count 2 for a recovery. The jury returned a verdict in favor of the plaintiff for $2250. A motion for a new trial was filed, and thereafter amended. The motion, as amended, was overruled. On this judgment the defendant assigns error here. 1. (a) We will not here either specifically or substantially, set forth the evidence. It is conflicting. The jury returned a verdict in favor of the plaintiff. Counsel for the defendant, we think very properly, admit that the general grounds and the ruling of the court on the demurrers and the motion overruling the objections to the allowance of the amendment of the plaintiff, which exceptions are properly preserved pendente lite, are so closely related that they may be considered together. In other words, if the court did not commit reversible error in overruling the demurrers and in overruling the objections to the allowance of the amendments, the case so far as these contentions are concerned, and so far as the general grounds are concerned, should be affirmed, unless some one or more of the errors assigned in the amended motion for a new trial demand a reversal. It will, perhaps, be necessary in discussing the case to discuss certain phases of the evidence and certain rulings concerning the admission of evidence and certain considerations relative to the rulings of the court during the progress of the trial. In many respects they are overlapping, at least in some particulars. We have set out the pleadings somewhat in detail in order that we might more clearly discuss the contentions which arise from the record.
(b) Counsel for the defendant states, and we think correctly, that the assignments of error may be specifically stated as follows: "1. The court erred in permitting the case to go to trial without requiring the defendant in error to set forth more specifically and describe more definitely the engine of the railway company which he alleged set out the fire.
"2. The court erred in permitting the defendant in error to amend his petition so that the case went to trial with the defendant in error claiming damages for the destruction of timber by fire and the diminution in the market value of the land in consequence of such destruction of timber.
"3. The court erred in not requiring the defendant in error to amend his pleadings in the court below to cure the defects pointed out by plaintiff in error in its grounds of special demurrers.
"4. The court erred in not granting a new trial and setting aside the verdict and judgment for the defendant in error because the defendant in error failed to carry the burden imposed upon him by law. *752
"5. The court erred in its ruling on testimony as set forth in grounds 1, 2, 3, and 4 of its amended motion for new trial." These grounds will be considered separately in the argument and citation of authorities hereinafter.
"6. The court erred in charging the jury as set forth in grounds 5, 6, 7, 8, 9, and 11 of the amended motion for new trial herein.
"7. The court erred in the conduct which is described in ground 10 of the amended motion for new trial."
Since counsel for both parties argue their respective contentions in this order, we will so deal with them.
2. (a) Because of the close relationship between this contention and the contention under the general grounds, it is admitted that they may be considered together and they are so treated in the briefs. This contention relates to the identity of the locomotive which is alleged to have set out the fire, and the general grounds go to the quantum of evidence introduced by the plaintiff to carry the burden of proof imposed on the plaintiff by law. So therefore, the question is, does the petition as amended sufficiently apprise the defendant as to the identity of the locomotive which is alleged to have set out the fire? Substantially, it is alleged on this point that the locomotive which set out the fire was a steam engine burning coal, without an adequate spark arrester, and that the fire was caused by such locomotive emitting live sparks which ignited the growth on the right-of-way, which caused the damage and that it passed near the place where the fire began "at approximately 12:30 or 1 o'clock p. m., the exact time unknown to your petitioner" on March 21, 1946. The defendant introduced in evidence a schedule of its north-bound freight trains which passed from 12 o'clock to 2 o'clock on the day in question as they reached Juliette, Georgia, which was in the vicinity of Dames Ferry and the property in question, as follows: First train No. 54 reached Juliette at 11:22 a. m. and departed at 11:27 a. m.; second train No. 54 reached Juliette at 12:27 p. m. and departed at 12:43 p. m.; Train No. 50 reached Juliette at 2:19 p. m. and departed at 2:24 p. m. One of the defendant's witnesses testified substantially that he was within a short distance of the place where the fire originated and that a coal-burning train passed near where he was working, and immediately *753 after it passed he observed a fire burning from the railway right-of-way to the property in question. He did not testify that he saw any sparks being emitted from the train, and that this was between 12:30 and 1 o'clock. Another witness for the plaintiff testified: "I remember where I was on March 21st, when I first knew about the fire. I was standing on the crossing at Dames Ferry, right near the crossing in the road. A freight train of the Southern Railroad passed while I was standing there, traveling north. I didn't have a watch, but it was around the middle of the day, somewhere between 12 and 2 o'clock. We were loading pulpwood at that time. Only one freight train passed there, going north, between 12 and 2 o'clock, and it was being pulled by a steam engine or coal-burning engine. It was a heavy train. . . I would say this particular train was running about forty miles an hour when it passed me at Dames Ferry that day . . and it was emitting sparks from the smoke-stack when it passed me at Dames Ferry. They were coming out of the smoke-stack some 25 or 30 feet high. Some of the sparks fell at my feet, about as large as the end of my thumb. . . To keep it from throwing fire and sparks, the engine is equipped with a spark arrester, a small mesh screen that fits down over the steam pipe where the steam exhaust comes through and creates a draft to burn it. . . I know it was between 12 and 2 o'clock because No. 50 went up about that time. It could have been on time, or could have been running ahead of time as an extra. I didn't look to see if he was flying any flag to indicate whether he was an extra train or not, but I know No. 50 was due along about that time. When I saw the train go by, I thought it was No. 50 and I still think it was No. 50. I knew what time No. 50 got there that day because I talked to the train dispatcher. I am not talking about any train now but No. 50. Train No. 50 left the Macon yards on March 21, 1946, at 1:10 p. m., and arrived at Juliette at 2:19, and left there at 2:24 p. m. That was the first No. 50. They run two sections of it that day. I learned on yesterday when No. 50 got to Juliette. I don't know what train Frank Johnson saw except what he told the court. I still say it was train No. 50 that set out the fire, and it go to Juliette at 2:19 according to the dispatcher. I got to Dames Ferry about 30 minutes prior to that time and was looking after some cars we *754 were loading there. I saw a bunch of negroes, there, and a few people around the store. I remember seeing a fellow Brown and a Mrs. Taylor. I was there about 30 minutes and I left when the train left. I don't know what time I got to Dames Ferry, but it was around 12 o'clock that day. I don't know the exact hour I went to lunch, but it was between 12 and 2 o'clock. I saw only one train go by Dames Ferry while I was there for about thirty minutes. I examined this report on yesterday. I know there were two sections of No. 50 that went along there, one about 1:45 and the other about 2:45, about an hour apart. I saw the first section of No. 50, and it reached Juliette at 2:19 and departed at 2:24. I am assuming it was the first section of No. 50, and from what the dispatcher said it must have been the first section of No. 50. I left there after this train went by and drove to my home, which was four miles west of Dames Ferry. I proceeded along the Dames Ferry and Forsyth highway. My home was on that highway, and about the time I got home I saw the smoke on the railroad track. The train went north and immediately thereafter I left and went to my home, which was about four miles away, and as soon as I got home I saw the smoke on the railroad. It took me about ten minutes to go from Dames Ferry to my home. I did not stay any length of time after I got to my home and saw the smoke on the railroad track. . . It was about fifteen or twenty minutes after that train passed Dames Ferry about 2 o'clock that afternoon before I saw any smoke. There was no smoke up the railroad track from Dames Ferry when the train went by. It was after the train went by before I saw any smoke up the railroad track, no evidence of smoke up the railroad until after the train passed." It will be observed that this witness, Mabry, had formerly worked as an engineer and knew something of the trains and the schedule, the numbers and the like, and his evidence as well as the evidence of the other witness, in our opinion, is sufficient to support the allegations of the petition so far as the general grounds are concerned. The defendant on this point put up evidence of its agents (workmen) and of its engineers that No. 54, which reached Juliette at 12:37 and departed at 12:43, had a proper spark arrester and that it did not by any carelessness start the fire. Although the trial consumed some considerable time, the defendant *755 did not account for the condition of train No. 50, nor of the other train. We think that the allegations of the petition as amended are sufficiently broad to include the time of the day that the other two trains passed the place where the fire originated. Thus, in view of the plaintiff's testimony and the testimony as a whole, the evidence is sufficient to sustain the general grounds on a motion for a new trial.
Counsel for the defendant rely for its contentions here on the case of Southern Ry. Co. v. Puckett,
The next case cited and relied upon by the defendant is that of L. N. Railroad Co. v. Moreland,
Counsel call our attention also to the case of SeaboardAir-Line Ry. v. Jarrell,
On the other side of the proposition, we call attention to the case of L. N. Railroad Co. v. Studdard,
"2. Evidence to the effect that a locomotive engine of the defendant passed near the plaintiff's property, and showing circumstantially that within a few minutes thereafter a fire arose in the grass and other combustible matter on the defendant's right-of-way at a point which the engine had passed, and that there was no other source from which the fire likely originated, was sufficient to authorize a finding that it was caused by a spark or sparks emitted from the engine as alleged. [Citing cases.]" See also, in this connection, Southern Pine Co.of Ga. v. Smith,
(b) We come next to consider whether the court erred in allowing, over objections, an amendment to the petition which added a second count. The original petition was based upon a claim for damages for the diminution in the value of the land before and after the fire, as well as the value of certain specifics. The second count was based on the value of specifies. The gravamen of the objections to the allowance of the amendment is that, while the plaintiff could base his cause of action and recover damages upon proof of either the diminution in the value of the land before and after the fire, or for the value of specifies damaged by the fire, the plaintiff could not join in his petition two counts, as the court permitted. It is the contention of the defendant that the plaintiff was required to elect whether he would ground his cause of action on the one or the other right of recovery before his suit was filed. It is contended that the original petition should have been brought either for the diminution in the value of the land or for the value of specifies alleged to have been destroyed. The trial court took a different view and permitted the plaintiff, over objections, to amend his petition by adding a second count, and requiring the plaintiff, after the conclusion of the evidence for both sides, to elect upon which count *758
he would rely for a verdict. After the evidence was in, the plaintiff elected to rely on the second count. In this we do not think that the court erred. As stated, counsel for the plaintiff concedes that the cause of action here could have been based originally on either the claim for damages in the diminution of the value of the land, or on damage to specifies. Therefore, the only question here is, could both be brought in the same petition, in separate counts? To sustain its theory, the defendant relies upon the case of Southern Railway Co. v.Birch,
(c) The amendments to the petition, in response to the special demurrers, were sufficient to cure the meritorious grounds of error pointed out in the special demurrers and the court did not err in overruling the other special demurrers urged.
3. We come next to consider special grounds 1,2, and 3. They were argued together and we will deal with them together. Error is assigned on the admission of certain testimony of the witness Mabry, a portion of whose testimony is set forth in division 2 (a). The portion of the testimony involved here was that set out above with reference to the train No. 50, and with reference to the evidence regarding the emission of sparks and the size of the cinders. This testimony was objected to on the ground that it was too vague and indefinite, that it had nothing to do with the issue involved, and that it was prejudicial. In overruling the objection to this testimony the judge, speaking to the jury, said: "It would be up to you and you alone to say whether or not it is the same train that has been testified to by the other witnesses, or whether or not it is the same train or the particular train, if it was, that started this fire complained of." In the same paragraph and as a part of it, the court said: "The court does not mean to intimate an opinion to you, but what the court is trying to say is that it is all a question of fact for you to pass on and solely for you to pass on. Go ahead." See, in this connection, Southern Railway Co. v. Richardson,
The cases relied on by the defendant, Georgia RailroadCompany v. Hicks,
4. Special ground 4 complains of the admission of cinders which had been picked up near the place where the alleged fire began. The witness Mabry, in company with the attorney for the plaintiff, picked up these cinders a few days before the trial. Mabry testified that the cinders introduced in evidence were similar in size to those which he saw coming from the smokestack of the defendant's locomotive. In admitting these cinders in the instant case, the court stated: "I will allow the cinders in, not as having been the cinders that were thrown from this engine, if there were any thrown from an engine, but solely based on this witness's testimony that they were comparative in size to the ones he saw emitted from an engine." Counsel for the defendant rely on A. C. L. Railroad Co. v. McElmurray Bros.,
5. Special grounds 5, 6, 7, 8, and 9 all assign error on certain excerpts from the charge of the court. It is elementary that the charge must be looked to as a whole and not any particular excerpt *761
or excerpts from it. When we apply this principle to this case as to the excerpts complained of, we find no reversible error in either of them. Viewing the charge as a whole, which we have carefully read in view of the assignments of error in these grounds, we find that it was fair, clear, applicable to the pleadings and the evidence, and without reversible error. We see no benefit to accrue to anyone to analyze these assignments of error as against the charge. This is true, notwithstanding the authority cited in support of special ground 5, Harrison v.Southern Ry. Co.,
6. In special ground 10 error is assigned on the ground that, after the case had been submitted to the jury, the court recalled them and inquired of the foreman whether they had reached a verdict. The judge was informed that the jury had not. He then asked them as to how they stood as to numbers, but not as to parties, whereupon the foreman informed the court "nine to three." The court then inquired whether they were thus divided on a question of fact or one of law. The foreman then stated that it was a question of fact. The court then stated: "Well, I didn't send for you to hurry you. It was on account of a message that I received a while ago. I am not trying to force a jury to reach a verdict in this case, but I want to help you in every way possible. We have been trying this case for a number of hours, and if there is any way this jury can conscientiously reach a verdict it is its duty to do so. However, I do not want this jury to get the impression that this court is trying to force the jury to reach some kind of a verdict, or to get the impression that the court is trying to punish the jury, but the court wants to be of any kind of help he can on matters or questions of law. The court can not, however, aid you on the facts, as that is a matter entirely for the jury. However, I can give you this rule: In civil cases, where the jury can not reconcile the testimony of witnesses conflicting, they can find a verdict according to the *762 preponderance of the evidence. If you follow this rule, I think you will have no difficulty in arriving at a verdict. If the jury would follow this rule, there would never be any necessity for a mistrial in a civil case. I wish you would all go back to your room and make another honest effort to agree on a verdict and follow the rule I have just given you and I don't think you will have any trouble in agreeing on a verdict. Retire, gentlemen."
In the early case of White v. Fulton,
7. In special ground 11 error is assigned on an excerpt from the charge of the court as follows: "We may take it as the established law of this State, that when proof is made that the property of one person has been injured or destroyed by fire occasioned by sparks from a locomotive, the burden is on the railroad company to show that the emission of such sparks or the escape of the fire from the locomotive was not due to the want of ordinary diligence on the part of itself or its servants, either as to the condition of the locomotive, or in its management and operation. It is always incumbent on the plaintiff to make proof that the fire was communicated by the locomotive of the defendant company." Error is assigned on this charge, substantially *765 as follows: (a) because it gave to the plaintiff the right to recover on an inference of negligence to be drawn from the proof of certain facts, which rule of evidence was established by the legislature and now codified in the Code, § 94-1108; (b) that it placed upon the defendant a burden of proof greater than that imposed by law; (c) that it gave to the plaintiff the benefit of a presumption which persisted throughout the trial and after the defendant had introduced evidence to rebut the inference of negligence arising by proof of damage to property of the plaintiff by the operation of the defendant's trains. The defendant then proceeds in this ground to call attention to certain portions of the evidence introduced by both the plaintiff and the defendant in order to sustain the assignments of error in this ground. Again here it might be proper to revert to the charge of the court, which more fully covers the question here under consideration, rather than to rely on an excerpt from the charge. The paragraph immediately preceding the excerpt of which complaint is made is as follows: "In this connection, I charge you, gentlemen of the jury, that the law does not require that engines shall be so constructed, equipped or managed as that no sparks of fire shall escape from them; and even if a fire does originate from a spark thrown out by a locomotive, that, of itself, does not, without more, render the defendant liable. Negligence must be made to appear. Assuming in this case that the burning of the property of the plaintiff was occasioned by fire thrown out from the engine, the defendant is to be held liable or not, as the facts establish, or fail to establish negligence on its part; and in determining that question, the condition of the engine, and the manner in which it was handled at the time of the fire, will control the finding." Following this, is the excerpt on which error is assigned and we will not again quote it. Immediately following the excerpt, the court charged: "Gentlemen of the jury, I charge you in that connection that the burden is on the plaintiff in this case to prove that the fire was set out by the locomotive of the defendant company, that is, you must be satisfied from the evidence in this case, before there could be any recovery by the plaintiff, that fire was emitted from the engine of the defendant, the railroad company, before you would be authorized to find any verdict against the defendant company. There is no presumption that the railroad *766 set out the fire, and if the plaintiff fails to prove to your satisfaction, by a preponderance of the evidence, that the railroad set out the fire, it would be your duty to find for the defendant. There could be no recovery against the railroad company unless you find from the evidence in this case the railroad company's locomotive actually set out the fire negligently."
Counsel for the defendant rely upon four cases to sustain its contention as to the assignments of error on this ground. The first of these is Macon, Dublin c. R. v. Stephens,
Judgment affirmed. MacIntyre, P. J., and Townsend, J.,concur.