Atlanta, Birmingham & Atlantic Railway Co. v. Whitehead

Jenkins, P. J. In a suit for damages against a railway company on account of the burning of property adjacent to its line, while it is the rule that, upon it being shown by the plaintiff that the injury to his property was occasioned by sparks emitted from the defendant’s locomotive, a rebuttable presumption thereupon arises that the loss was caused by the alleged particular acts of negligence complained of (Central of Ga. Ry. Co. v. Trammell, 23 Ga. App. 25 (2), 97 S. E. 461), it is neverthe- . less true that the petition of the plaintiff must set forth and charge that the defendant was guilty of some specific act of negligence, consisting either in the use of some particularly mentioned defective and dangerous machinery, or in some specific act of negligence in the manner of operating the train, and that the negligence thus charged resulted in the loss complained of. Mere general allegations that the fire was caused by the careless and negligent operation of the train, without averring any particular causal defect in the machinery used, or any special lack of care in the operation of the train, while sufficient as against general demurrer, renders the petition subject to a timely special demurrer. Pierce v. Seaboard Air-Line Ry., 120 Ga. 230, 232 (47 [90] S. E. 581); Kemp v. Cen. R. Co., 122 Ga. 559 (50 S. E. 465); Southern Ry. Co. v. Ryals, 123 Ga. 330 (1) (51 S. E. 428); Macon, Dublin & Savannah R. Co. v. Stewart, 120 Ga. 890 (1) (48 S. E. 354); Louisville & Nashville R. Co. v. Cody, 119 Ga. 371 (46 S. E. 429). In this ease, the special demurrer should have been sustained. Decided October 12, 1923. Brandon & Hynds, Wall & Grantham, Woodward & Bedding-field, for plaintiff in error. W. H. Lasseter, contra. Where exceptions pendente lite are taken and preserved by the defendant to the improper overruling of such a special demurrer, the subsequent proceedings are rendered nugatory. So. Ry. Co. v. Pope, 129 Ga. 842 (3) (60 S. E. 157); So. Ga. Ry. Co. v. Ryals, 123 Ga. 330 (1), 332 (51 S. E. 428). Judgment reversed. Stephens, J., concurs. Bell, J., disqualified.