Southern Railway Co. v. Horine

Cobb, J. Horine sued the Southern Railway Company for damages growing out of the destruction of a fence by a fire, it being alleged that the defendant “carelessly permitted fire from the engine of the local freight-train, going west, to be thrown out, whereby the litter which said company had permitted [to] accumulate on said right of way was ignited, and the fire spread therefrom and burned and destroyed said fence and rails so built and constructed on petitioner’s farm.” The trial resulted in a verdict in favor of the plaintiff, and the defendant complains that the court refused to grant it a new trial. 1. The evidence discloses a case very similar to that which was contained in the record in the case of Southern Railway Company v. Pace, 114 Ga. 712, and what is there said is applicable to the present case. Under the ruling there made, as well as the rulings in the cases which were then followed, a verdict in favor of the plaintiff was not authorized by the evidence, and a new trial should have been granted. 2. It is insisted in the .brief of counsel for the defendant in error that the verdict should be sustained, for the reason that the evidence showed that the defendant had negligently allowed broom-sedge, trash, and other combustible matter to accumulate upon its right of way, and that the fire was communicated to the plaintiff’s fence from this combustible matter. In reference to this contention, all that is necessary to be said is that the plaintiff did not in his declaration allege this as a ground of negligence. From the allegations of the petition which are set forth in the headnote, as well as in the above statement of facts, it clearly appears that the negligence which the pleader relied upon in drafting the petition was either in the manner in which the engine was handled or some defect therein, and there is nothing in the language of the petition which can be properly construed as an allegation that the defend [666] ant negligently allowed combustible matter to accumulate upon its right of way. Judgment reversed. All the Justices concurring, except Lewis, J., absent.