11 Ga. App. 482 | Ga. Ct. App. | 1912
The plaintiff in error excepted to an amendment to the petition, but as this exception is not mentioned in the brief of counsel, it will be treated as abandoned.
There was conflict in the evidence as to the origin of the fire that burned the plaintiiPs property. Witnesses for the defendant company testified that there had been a fire in the woods for some time, and that this fire caused the injury of which the plaintiff complained; that the fire was not caused by sparks thrown out by the engine. On the other hand, the plaintiff introduced witnesses who testified that they saw the fire start from sparks thrown out by the engine as it passed. This testimony, if credited by the jury, cast upon the railroad company the burden of satisfying the jury that the company was not liable for the damage; that although the fire might have been occasioned by sparks from its engine, still there was no liability, because the company had provided itself with such appliances, and had so used them, as that the casualty could not have been prevented if the trains were operated at all; in other words, that the prevention of the fire, under the circumstances, would have necessitated the total abandonment of its public duty by the common carrier.
The charge complained of follows literally the ruling in Southern Ry. Co. v. Thompson, 129 Ga. 367 (58 S. E. 1044), but, under the testimony in the present case, the instructions of the court as to the “best appliances” could not have been harmful even if
The case at bar is distinguished from Southern Railway Co. v. Pace, 114 Ga. 712 (40 S. E. 723), Gainesville &c. R. Co. v. Edmondson, 101 Ga. 747 (29 S. E. 213), and Southern Railway Co. v. Myers, 108 Ga. 165 (33 S. E. 917), in that in those cases not only was the evidence of the fire wholly circumstantial, but the great preponderance of the evidence tended to show, not only that the appliances were the best in general use, but that they were in proper condition and properly handled. In the present case, while the evidence is undisputed that the appliances conformed to the law, the testimony as to the origin of the fire, given by the witnesses for the plaintiff, as well as other circumstances in the case, authorized the inference on the part of the jury that although the company may have had the best appliances in general use, they were either not in good condition at the time of the fire, or not properly handled at that time.
Judgment affirmed.