Atlantic Coast Line Railroad v. Olivent

Court of Appeals of Georgia

Atlantic Coast Line Railroad v. Olivent

79 S.E.2d 435, 89 Ga. App. 403, 1953 Ga. App. LEXIS 974

CourtCourt of Appeals of Georgia

DecidedDecember 2, 1953

Docket34612

StatusPublished

This text of 79 S.E.2d 435 (Atlantic Coast Line Railroad v. Olivent) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Atlantic Coast Line Railroad v. Olivent, 79 S.E.2d 435, 89 Ga. App. 403, 1953 Ga. App. LEXIS 974 (Ga. Ct. App. 1953).

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Opinions

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]*404Decided 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.

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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]*404Decided 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.

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79 S.E.2d 435, 89 Ga. App. 403, 1953 Ga. App. LEXIS 974, Counsel Stack Legal Research, https://law.counselstack.com/opinion/atlantic-coast-line-railroad-v-olivent-gactapp-1953.

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