East Tenn., Va. & Ga. Railway Co. v. Hesters

[12] Judgment affirmed. The jury found for the plaintiff $308.25. A motion for a new trial was denied, and the defendant excepted. The motion alleges that the verdict is contrary to law and evidence. It is further complained that the court refused to entertain the defendant’s demurrer as such, but entertained it only as a motion to dismiss the case, and as such overruled it. The grounds taken therein were : (1) that the declaration does not set forth any sufficient cause of action ; (2) that it does not show by what agent, servant or employee the act was done, nor by what cars, train or locomotive the alleged injury was done; (3) that it does not set forth the damages alleged, nor any act of negligence, with sufficient accuracy or certainty to enable the defendant to prepare and make a proper defence; and (4) that the damages alleged are too speculative to entitle the plaintiff to recover. It is further alleged that there was no evidence nor any basis of calculation from which the jury could have arrived at the amount of the verdict. Further, it is assigned as error that the court overruled the defendant’s motion for a nonsuit, made when the plaintiff’s counsel first announced closed, upon the ground that the plaintiff had shown no title to the property alleged to have been destroyed, and that the evidence did not show any liability on the defendant and did not make out a case that would entitle the plaintiff to recover, the plaintiff’ at this stage not having introduced any written title or evidence of ownership of the properly. Several grounds complain of the admission of testimony in behalf of the plaintiff.- One witness was asked, “About two weeks before that [January 28, 1890], do you recollect being there in your field and having sparks come from the engine and fire the grass right there beside you?” The objection was that this was leading, irrelevant and not sufficiently connected with this case in point of time. The objection was overruled, and the witness answered: “ I don’t recollect just when it was; not long before that the sparks came from the engine and fell right near me (it was an old field with broom-sedge in it) and caught it, but I was near enough to put it out; the sparks fell all around me and were so that I could plainly feel them when they fell on me. I can’t say how large they were, large enough for me to feel them; it was only a short time before January 28th. I mean by a short time a few days or week or two. I don’t know exactly how long it was.” Another witness was allowed to testify, over objection for irrelevancy, as follows : “ It was a pretty frequent thing along about January 28th, 1890, for the engines of the East Tennessee, Virginia & Georgia railroad to throw out sparks and set out fire. I never examined much, but I have seen big sparks thrown out and catch the grass and burn several times up and down the railroad.” It is alleged that the court erred in overruling the defendant’s motion at the close of the plaintiff's case, to rule out all the evidence in reference to the burning of any of plaintiff's property, and in refusing to nonsuit the plaintiff'because the proof as to the burning and as to the fire and its origin did not correspond with the allegations in the declaration, and because, the evidence showing that the fire originated on the railroad right of way a mile and a half or two miles away from where the property was situated, the evidence is incompetent, and the plaintiff is not entitled to recover under this state of facts, and the damages are too remote to authorize a recovery, even if the fire that destroyed the property originated by sparks thrown out by an engine of defendant. The following deeds were admitted in evidence over the objections of defendant’s counsel: (1) A deed dated October 7, 1882, from J. J. O’Quinn to David R. Hesters in consideration of -conveying 100 acres of land lot 378 in the second district of Appling county, bounded west by Black Water creek, north by L. A. Johnson’s lands, east by E. Johnson’s land, and south by original line. The objections were, that no consideration is expressed in the deed and none was proved, that the description of the land conveyed is insufficient, that the deed does not show title in the plaintiff and is irrelevant, and that it was recorded during the progress of this trial, the date of record being December 2, 1891. (2) A deed dated November 10,. 1866, from Francis O’Quinn to J. J. O’Quinn, in consideration of $250, conveying the east half of lot 348 in the second district of Appling county. The objections were, that there was no evidence showing that this deed was applicable to this ease or that the land conveyed by it was involved in this case, and that it does not show title in, the plaintiff, and. was recorded.during the trial, the date of record being the same as the deed above mentioned. (3) A deed dated August 17, 1872, from J. J. O’Quinn to David Hesters, in consideration of $200, conveying the east half of lot 348 in the second district of Appling county, except ten acres lying on the north side of Black Water creek. The objections were, that this deed was irrelevant, that the property conveyed was not sufficiently described, that the evidence does not identify the property as being involved in this case, and that the deed does not show title in the plaintiff. (4) A deed from J. J. O’Quinn to David Hesters, dated April 25, 1877, in consideration of $10, conveying twenty-five acres of the east half of lot 348 in the second district of Appling county, lying on the north side of Black Water creek. The objections were, that the deed was irrelevant, the description insufficient, that there was no evidence making it applicable or showing that the property conveyed by it is involved in this case, and that it does not show title in the plaintiff, but shows on its face that it was not recorded until during the present trial, to wit on December 3, 1891. - It is assigned as error that the court failed to charge, without request, that if the fire that destroyed the property was put out by any other person or in any other manner than by sparks from an engine of defendant, the plaintiff could not recover; this being a theory greatly relied upon by defendant. The coui't charged: “ If you should believe that the railroad company was negligent in the running.-and operating of its train's, in'failing to provide reasonably suitable machinery for the use of its employees in the running and operating of its railroad, and that the injury resulted from such cause as set out in the declaration,, then the plaintiff would be entitled to recover.” This; is alleged as error because it submits to the jury a question not made by the evidence, there being no evidence-to controvert or deny the defendant’s testimony that its* engines, locomotives and machinery were properly constructed and equipped, and provided with the most: modern and approved appliances for preventing the-escape of fire; and because the evidence shows that the-damages are too remote for the plaintiff' to recover, even though the jury should believe that the defendant was negligent and' that the damages resulted imxm such cause. DeLacy & Bishop, for plaintiff in error:. E. P. Padgett, contra.