Hendricks v. Southern Railway Co.

Lumpkin, J. T. R. Hendricks, as executor of his deceased wife, brought suit against the Southern Railway Company, to recover damages for the burning of a house and contents located near the right of way of the railway, and which it was alleged were set on fire by sparks or cinders carelessly thrown from one of its engines. The defendant denied the allegations of the 'declaration that the fire wa‘s caused by its engine, and that there was negligence on its part. Two verdicts were found in favor of the plaintiff. A second motion for new trial was made, containing fourteen grounds. But we think that none of them authorized the verdict to be set aside. Among these grounds was one complaining that the court held, that, under the will of Mrs. Hendricks, the substance of which is set out in the second headnote, the executor had the right to keep the estate intact until the youngest child became of age; and that the executor consequently had the right to sue for an injury to the property resulting from a negligent tort. In this we think he was right. There was conflict in the evidence as to whether the fire was the result of sparks or cinders thrown off by the defendant’s en-. gine. A witness testified that when the engine which it is claimed emitted sparks passed a place about four and a half miles from the place of the burning, it was throwing out sparks which set fire to the grass along the right of way. Another witness testified to a’ similar state of facts at a place about five miles from the point where the. plaintiff’s house was burned. The latter witness stated that he saw grass on fire about seventy-five or eighty feet from the railroad, and that it began to burn as soon as the train passed. A third witness testified that the engine emitted cinders and sparks as large as a man’s thumb, and in considerable quantities; that they remained red hot until they fell to the ground and fired the grass along the right of way. [344] Evidence was introduced, on behalf of the .defendant to show that the engine was properly. equipped with a spark-arrester which was in good condition. Its boiler inspector testified that the meshes or holes in the netting on this locomotive were three sixteenths of an inch in size; that if smaller holes were used it would clog the engine and prevent the. necessary draft; and that if the netting was all right, nothing larger could pass through. On cross-examination he testified that a spark larger than a pencil could not pass through the spark-arrester, and that “if an engine had thrown out sparks larger than that cedar pencil and thrown them from sixty to eighty feet, and they stayed alive until they got on the ground, such an engine could not have been equipped with a first-class spark-arrester.” The plaintiff did not, therefore, rely upon a mere presumption arising from proof of injury, but introduced additional evidence bearing on the question of negligence. It was not only admissible; it was very material. A careful examination of the record discloses no reason why this second verdict should have been set aside. See Brown v. Benson, 101 Ga. 753; Central Ry. Co. v. Trammell, 114 Ga. 312. Judgment reversed. All the Justices concur, except Simmons, C. J., absent, and JEvans, J., disqualified.