Georgia Railroad &Amp; Banking Co. Et Al. v. Flynt., 93 Ga. App. 514, 92 S.E.2d 330 (1956)
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For no reason assigned therein did the judge err in overruling the defendant's amended motion for a new trial.
Mr. Wales T. Flynt brought an action against Georgia Railroad & Banking Company, Atlantic Coast Line Railroad Company and Louisville & Nashville Railroad Company for damages resulting from a fire which burned over his lands consisting of twenty acres of timber land and forty acres of pasture land, the fire allegedly being caused by the defendant's negligent operation of its train. The petition was based on diminution of the value of the land, and an amendment also added counts two and three which alleged damages to specifics. After all of the evidence was introduced the plaintiff elected to rely only on count one of his petition which was based on diminution to the value of the property.
Count one of the petition alleged in substance: that the Georgia Railroad & Banking Company was a corporation operating a railroad in the State of Georgia and through Taliaferro County; that the Atlantic Coast Line Railroad Company and the Louisville & Nashville Railroad Company are lessors of the railroad tracks and equipment of Georgia Railroad & Banking Company and have an office and agent in charge of their business in Taliaferro County; that the defendants have injured and damaged the plaintiff in the sum of $3,750; that on February 11, 1952, the defendant was operating its freight and passenger train along its line of railway in Taliaferro County in the direction of Barner, Georgia, from Washington, Georgia, about 1 o'clock p. m., that about two miles south of Sharon the defendant's engine emitted sparks of fire from its smoke stack and further emitted sparks from the fire box on the defendant's right-of-way adjoining lands of Wales T. Flynt; that the sparks blazed into a burning fire on the right-of-way onto the plaintiff's land and burned over approximately 20 acres of valuable timber land which had 40 or 50 thousand feet of valuable saw timber and was very thickly seeded with young pine timber of various ages and sizes; that the timber was killed, blistered, and blackened and damaged, rendering it practically worthless; that the timber land just prior to the fire was worth $140 per acre and after the fire its reasonable value was approximately $30 per acre; that the fire burned over 40 acres of pasture land which just prior to the fire was worth $71 per acre and just after the fire was worth approximately $30 per acre; that just previous to the fire there were 150 fence posts which just prior to the fire were valued at $1,000 and after the fire were worth approximately $650; that the defendant was negligent in the following particulars: (a) operating and handling its train so as to allow sparks and embers to be emitted therefrom; (b) in operating its train without its being equipped with a proper spark arrester; (c) in failing to keep its right-of-way clear of highly inflammable material; (d) in allowing the fire to spread from its right-of-way onto the plaintiff's property as the result of the defendant's employees failing to keep a constant lookout about the train so as to avoid damage to the plaintiff's property; (e) in failing to exercise ordinary care in allowing sparks to fall from the train's fire box onto the right-of-way; (f) in using a spark averter which was improperly constructed to prevent live sparks from arising from the smoke stack.
The defendants filed general and special demurrers to counts two and three of the petition and after a hearing the trial judge passed an order overruling the demurrers.
Thereafter on February 28, 1955, the case proceeded to trial. Upon the trial of the case the plaintiff testified in substance: that he owned a tract of land adjacent to the railroad leading from Sharon to Barnett; that in his opinion there were 60 acres burned over at the time of the fire; that he was familiar with the land and its value in that section; that he had testified at a previous trial that he was not familiar with the market value of the property, but since that time he had formed an opinion as to its market value as the result of having looked it over and talking to other people about its value; that he was familiar with pasture land and timber land in that section; that in his opinion the timber land was worth approximately $140 an acre immediately prior to the fire and its value just after the fire was about $30 an acre; that the fire burned over approximately 40 acres of pasture land which was worth about $70 per acre just prior to the fire and approximately $30 per acre just after the fire; that there was also some fence destroyed by the fire which value was approximately $1,000 immediately prior to the fire and about $550 after the fire; that there were approximately 8,000 feet of timber per acre on the land, some of it being saw timber size; that his opinion as to the market value of the timber land was his own opinion and what he had gathered from other people.
Mr. James Terrell Ray, a witness for the plaintiff testified in part: that in his opinion there were about 35 acres of timber destroyed by the fire; that there were about 5,000 feet of timber per acre destroyed; that good timber was worth about $30 per thousand.
The plaintiff introduced in evidence a deed from the Georgia Railroad to the Highway Department which showed the right-of-way to run 100 feet from the track on the opposite side of the tracks to the property in question.
E. F. Newsom was sworn as a witness for cross-examination and he testified in substance: that he was a section foreman for the defendants; that he burned the right-of-way for the railroad; that at the plaintiff's property he burned 60 feet from the tracks.
Mr. J. Guy Norman, Jr., a witness for the defendant testified in part: that he was engineer of the train on February 11, 1952; that the first time he saw the fire was on the return trip to Washington; that when he saw the fire coming back from Barnett it was burning right slow to the right-of-way of the railroad; that the engine was not throwing sparks as it passed the plaintiff's property; that little fire cinders come out of the throat regardless; that the engine was not dropping any fire before leaving Washington; that he would have noticed if anything out of the way had happened to the engine; that he inspected the engine upon arrival at Sharon and the engine was not dropping fire; that he did not inspect the spark arresting equipment but after seeing the fire on the return trip he sent a message to the shop to have some men come and inspect the spark arresting equipment; on cross-examination he testified: that he did not see any fire ahead of the engine but did not know if there was fire after the engine passed; that he did not know what the condition of the right-of-way was at the time he passed by the plaintiff's property; that he did not know how wide the right-of-way was but he imagined it went back to the fence which was 15 to 25 feet from the track.
Mr. R. F. Attaway, a witness for the defendant testified in substance: that he was a boiler maker or inspector in the Georgia Railroad shop; that he inspected the engine in question and its spark arresting equipment was like that which was generally used by other railroads; that he inspected the spark arresting equipment on the engine in question and it was in good condition.
Mr. R. C. Young, a witness for the defendant, testified in part: that he had been a Georgia Railroad boiler inspector; that he went to the depot to make a road trip and he got a telegram that engine 2.2 (the one in question) in Washington was throwing fire; that he went to Washington and checked the spark arresting equipment on the engine and did not find anything wrong; that he checked the grate as well as he could but he could not work the grate because it had fire in it; that he did not find any evidence that the engine was throwing fire.
Mr. Carlton Bell testified that in his opinion the damage to the property was about $3 per acre.
Mr. F. C. Barnes, a witness for the defendant testified in part: that he was special agent for the Georgia Railroad; that when he saw the fire it was approximately 200 feet from the railroad and was eating its way towards the railroad slowly; that he asked Will Williams about the fire and all Will would say was that the train set out the fire; that he had seen no fire on the right-of-way of the railroad; that he saw the smoke which he followed to the fire in question at 11:45 and the train was not due to leave Sharon until 12:08, therefore he felt the train did not cause the fire.
The jury returned a verdict for the plaintiff in the amount of $3,750. The defendants made a motion for a new trial which was overruled, to which ruling the defendants excepted and the case is here for review.
1. The defendant in error, Wales T. Flynt, will be referred to in this opinion as the plaintiff, and the plaintiff in error Georgia Railroad & Banking Company, will be referred to as the defendant, or the railroad company.
It is the position of the defendant that its engine was so constructed and operated that fire could not have been communicated to combustibles, grass, weeds, and bushes upon its right-of-way, and that if it was shown by any evidence that combustible substance was upon lands adjacent to and along its railroad tracks there was no proof that such substance was upon its right-of-way, since there was no evidence as to the width of its right-of-way.
As to the first of these contentions it must be observed that according to some testimony of one of the defendant's witnesses cinders or sparks of fire could be emitted from the engine. There was evidence that immediately after the engine passed the fire began. Coals were later found at about the same place on the defendant's tracks. So, unlike the case of Gainesville, Jefferson &c. R. Co. v. Edmondson,
As to the width of the defendant's right-of-way we are impressed, that since according to the plaintiff's evidence, the fire first appeared about five feet from the defendant's tracks it could reasonably be assumed that it was upon the right-of-way. Of course, there are railroad yards in which a railroad company's right-of-way may not extend that distance from its tracks, but the fire in this case originated in a rural area. It could hardly be assumed that the company operated its line of railroad without any night-of-way or one narrower than five feet from its tracks. But regardless of whether such assumption could be indulged and conceding that from the evidence that the fire so close to the tracks was not upon the right-of-way, the evidence sufficiently established that the defendant used a considerably broader strip of land as its right-of-way. The fact that the defendant did actually use and exercise dominion over a particular area as its right-of-way was evidence that it was in possession of the same, and under the duty to keep it reasonably clear of debris and combustibles. Indeed bare possession of real estate is some evidence of ownership. Murphy v. Central of Ga. Ry. Co.,
It follows that the only measure of damages for which the plaintiff sought recovery was a diminution to the value of his realty and that the defendant permitted the case to proceed on that theory alone, hence there can be no doubt that was the only measure of damages in reference to which the court could have properly charged the jury. The ground does not show error.
7. The ninth and tenth grounds of the motion complain that the court instructed the jury in reference to the contentions of the plaintiff as to the damage done fence posts and pasture lands on his realty to which he contended fire was communicated from the plaintiff's engine. The special insistence of these grounds was that there was no evidence as to any damage to the fence posts or pasture lands. The premise is incorrect for the reason that the record which it was necessary to carefully peruse in order to ascertain whether the grounds were meritorious reveals ample evidence to support the charge. The plaintiff testified that the fence posts along with the pasture and timber lands were damaged. He gave an opinion of the aggregate damage to his realty which embodied damage to fence posts, pasture and woodlands. The court then instructed the jury as to the assessment of damages to the entire property. The charge did not submit any question to the jury as to the amount of the separate items of damage, but instructed the jury that it was the plaintiff's contention that the realty had been damaged in that his fence posts, pasture and woodlands constituting parts of the realty had been burned. The criticism of the charge is not meritorious.
8. Grounds eleven, twelve and thirteen of the amended motion for new trial contend that instructions were given to the jury submitting issues not made by the pleadings or supported by proof adduced upon the trial. A careful examination of these grounds and equally thorough review of the record constrains us to hold the pleadings submitted and evidence, if believed by the jury, sufficiently supported the plaintiff's contentions of all the issues referred to in the court's charge.
9. The fourteenth ground assigns as error that the court, without request failed to charge, that if a witness knowingly and wilfully swear falsely in a material matter, his testimony should be rejected entirely, unless corroborated by the facts and circumstances of the case or other credible evidence.
The ground relates that a named witness materially changed his testimony from that given by him on a former trial of the case as to material matters. The testimony of the witness was material because it related to the vital issue as to whether the fire was in fact communicated from the defendant's locomotive to the plaintiff's property. It was also to some extent inconsistent with the same witness's testimony on the former trial of the case, but the witness explained the inconsistency by explaining that, if he testified differently on the previous trial he was simply mistaken. In the first place the inconsistency was not such, in view of the explanation given by the witness, as to make it apparent that he testified falsely on either trial. Rare it is that the most truthful can after a lapse of months, repeat the material details of an event with complete accuracy. The witness' testimony on a whole seems reasonably consistent.
Emphasis is placed on the fact that the damage found by the jury was in excess of the original purchase price of the property, when purchased by the plaintiff some twelve years before the time the damage was done.
The verdict was within the range of the evidence. While the jury was not bound to accept the plaintiff's estimate of the damage done his property, his opinion was not contradicted by proof offered by the defendant. It is generally the province of the jury to decide questions of values and the extent of damages. The cost of the property in a less improved state at the time the plaintiff purchased it some twelve years before the fire was a matter for the jury to consider; it was by no means conclusive or necessarily indicative of its value when damaged. We cannot hold the verdict was as a matter of law excessive. 11. Ground sixteen of the amended motion for a new trial complains that the trial judge having undertaken to charge the provisions of Code 38-109 which embodies the rules to be applied by the jury in determining where the preponderance of evidence lies omitted to refer to the intelligence of the witnesses and probability or improbability of their testimony.
12. The seventeenth ground of the amended motion excepts to the court's instructing the jury that if they believed from the evidence that the plaintiff's property was destroyed by reason of the defendant being negligent in the particulars alleged in the petition the plaintiff would be entitled to recover. The principal criticism of the charge was that it in effect instructed the jury that proof by the plaintiff that the defendant was negligent as alleged in the petition and that the plaintiff sustained damages would support a recovery, though the evidence did not disclose that the defendant's negligence was the proximate cause of the plaintiff's damages. The necessity for causal connection between the defendant's negligence and the plaintiff's damages is contained in the very initial phrase of the charge to which exception is taken. That phrase instructs the jury that in order for the plaintiff to recover they must find that the sparks emitted from the plaintiff's engine by reason of certain acts of the defendant: "(a) The defendant was negligent in operating and handling its train so as to allow sparks and embers to be emitted therefrom. (b) in operating its train without same being equipped with a proper spark arrester. (c) In failing to keep its night-of-way clear of highly inflammable material. (d) In allowing the fire to spread from defendant's right-of-way onto your petitioner's property. (e) In failing to exercise ordinary care and diligence in operating its train so as to avoid injury to the property of the petitioner," destroyed the plaintiff's property. The criticised instructions did not contain the words "proximate cause" but were couched in terms more intelligible to a layman than the stereotyped charge generally given on this subject. The charge did instruct the jury that in order for negligence to be actionable it must create the force that is the precipitate cause of the mischief done. This ground is without merit.
Judgment affirmed. Felton, C. J., and Nichols, J., concur.
1956
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