Swindell & Co. v. Alabama Midland Railway Co.

Cobb, J. When this case was here before (117 Ga. 883), it was said that the evidence disclosed a case very similar to that of Southern Ry. Co. v. Pace, 114 Ga. 712. In the latter case the evidence for the plaintiff was altogether circumstantial, but was sufficient to raise a presumption of negligence; though this, presumption was completely rebutted by the testimony for the defendant. The evidence for the plaintiff in the present case [312] is substantially the same as it was before, and therefore did not authorize the grant of a nonsuit. There was evidence from which a jury could find that the fire was communicated to the plaintiff’s property from the defendant’s engine; and if this fact was established, the law would raise a presumption of negligence against the company. If upon another trial the evidence for the plaintiff and the defendant is in substance the same as it was when the case was before this court at the March term, 1903, the judge would be authorized to direct a verdict for the defendant. But even under th.e ruling then made, a nonsuit was improper. Judgment reversed. All the Justices concur, except Simmons, O. J., absent.