Atlantic Coast Line Railroad v. Olivent

Quillian, J. 1. This is a companion case to Atlantic Coast Line R. Co. v. Sellars, ante, p. 293 (79 S. E. 2d 35). Erom the evidence it appears, and the jury were authorized to find, that the damages complained of resulted from the negligence of the defendant in permitting live coals to be dropped from its locomotive onto its right-of-way, which started a fire thereon that spread to the lands of the plaintiff. The sole special ground of the motion for new trial in this case is the same as the fourth special ground of the motion in that case, and, as held in the fourth division of the opinion there, such ground was without merit. [404] Decided December 2, 1953 Rehearing denied December 16, 1953. Custer & Kirbo, for plaintiff in error. Peacock, Perry & Kelley, Jesse W. Walters, contra. 2. While there is no presumption that the fire was set by the locomotive of the defendant, such fact may be shown by circumstantial evidence, and though the defendant, in the absence of some act of negligence on its part, is not liable for merely setting a fire, such negligence as places liability on the defendant need not be confined to the equipping, maintenance, or operation of its locomotive, but may consist of negligence in such matters as the maintenance of its right-of-way. A. C. L. R. Co. v. Davis & Brandon, 5 Ga. App. 214 (62 S. E. 1022). Consequently; where, as in this case, there was evidence that live coals were observed along the defendant’s right-of-way where the fire in question was seen to originate shortly after the passage of its steam locomotive, and the defendant had permitted a growth of tall grass to remain on its right-of-way, and such grass was dead and dry and communicated the fire to the lands of the plaintiff, such evidence was sufficient to authorize the verdict for the plaintiff, even though no witness testified directly that he saw the defendant’s locomotive emit sparks or drop live coals. This is true even though the evidence may have demanded a finding that the defendant’s locomotive was equipped with the latest and best spark arrester and ash pan in general use on that type of locomotive. Judgment affirmed. Sutton, C. J., and Felton, J., concur.