Opinion
20744.
ARGUED JANUARY 11, 1960.
DECIDED FEBRUARY 11, 1960. REHEARING DENIED MARCH 14, 1960.
Action for damages. Gordon Superior Court. Before Judge Davis. March 27, 1959.
R. Carter Pittman, Beverly Langford; for plaintiff in error.
R. F. Chance, contra.
1. There being no competent evidence to sustain the verdict, it was error to deny the motion for new trial.
2. The trial judge properly denied the motion for a directed verdict, and the subsequent motion for a judgment notwithstanding the verdict.
ARGUED JANUARY 11, 1960 — DECIDED FEBRUARY 11, 1960 — REHEARING DENIED MARCH 14, 1960.
P. D. Scott sued Southern Railway Company for damages. It was alleged that: The plaintiff was the owner of certain described property on which were located certain buildings. On or about September 22, 1955, at about 3:30 p. m., the defendant was operating one of its trains along and over its right-of-way in a northerly direction, north of the station of Plainville, Georgia, and in the direction of Dalton, Georgia. "One of the box cars attached to said train had what is commonly known and referred to as a `hotbox' which was on fire and which emitted fire, lighted particles and sparks onto the right-of-way of said defendant, and the lands of plaintiff herein, setting fire to grass and other refuse which had been allowed to accumulate on said right-of-way, . . . That said fire so set out by defendant burned onto and over the lands" of the plaintiff, burning and destroying the buildings thereon. The defendant, its agents, and employees, did nothing to prevent the spread of the fire onto the lands of the plaintiff. The aggregate value of the property burned and destroyed by fire was $5,163.25.
It was alleged that the defendant was negligent: in permitting and allowing fire to escape from the hotbox attached to the defendant's train; the defendant, its agents and employees, failed to observe the hotbox, and permitted it to become ignited and to emit fire and ignited particles onto the right-of-way of the defendant and the lands of the plaintiff; in permitting grass, weeds, and other inflammable and combustible material to accumulate on its right-of-way; in failing to do anything to prevent the spread of the fire onto the lands of the plaintiff; in failing to exercise ordinary care in preventing fire to escape from the hotbox on the freight car and onto the right-of-way, where the fire, lighted particles, and sparks ignited combustible material, which spread to the lands of the plaintiff; and in failing to put out and prevent the spreading of the fire.
The defendant filed an answer denying the allegations that it was negligent, or that it caused the fire and the destruction of the plaintiff's property.
At the conclusion of the plaintiff's evidence, the defendant made a motion for a directed verdict. The motion was denied, and the jury returned a verdict for the plaintiff in the sum of $2,000. The defendant's motion for new trial, on the usual general grounds only, and its motion for a judgment notwithstanding the verdict were both denied, and the defendant excepted, assigning error on these rulings.
On the question as to whether or not there was any evidence to support the verdict for the plaintiff, the Court of Appeals divided equally, and the case was transferred to this court as provided by the Constitution (Art. VI, Sec. II, Par. VIII; Code § 2-3708).
1. There are many decisions by this court and the Court of Appeals in cases wherein a recovery was sought for damages resulting from a fire alleged to have been caused by a spark from the engine of a train. Counsel have not cited any case where the damages claimed were alleged to have resulted from a fire originating in a hotbox on a train, and our search has not revealed such a case. The measure of diligence required of a railroad company for the prevention of fire by its locomotives is ordinary care and diligence to equip its engines with the best appliances in general use. Western Atlantic R. Co. v. Maynard, 139 Ga. 407 ( 77 S.E. 399); Seaboard Air-Line Ry. v. Gnann DeLoach, 142 Ga. 381 ( 82 S.E. 1066). In order to authorize a recovery of damages for the destruction of property by fire caused by the running of a train, it must appear that the damages were occasioned by the fault or negligence of the company or its agents. Gainesville, Jefferson c. R. Co. v. Edmondson, 101 Ga. 747 ( 29 S.E. 213); Southern Ry. Co. v. Pace, 114 Ga. 712 ( 40 S.E. 723).
The burden in the present case was on the plaintiff to establish by a preponderance of the evidence that the fire which destroyed his property resulted from the operation of the defendant's train. Inman Co. v. Elberton Air-Line R. Co., 90 Ga. 663 ( 16 S.E. 958, 35 Am. St. Rep. 232); Atlantic Coast Line R. Co. v. Thomas, 83 Ga. App. 477 ( 64 S.E.2d 301).
The plaintiff's evidence not only fails to establish that one of the box cars of the defendant's train had a hotbox at Plainville, but on the contrary, his evidence tends to negative his allegations. The plaintiff's witnesses, Faye Autry and Ferdinand Floyd, testified to the effect that they were in a truck at a crossing while part of the train passed, and they neither saw nor smelled a hotbox on the train. The plaintiff's witness G. E. Watson (brakeman on the defendant's train) testified to the effect that he was on the lookout for a hotbox; that they could be observed when the train went around a curve; that he did not see a hotbox before the train reached Dalton; and that a train could not run the distance of 25 miles between Plainville and Dalton with a hotbox. Testimony which raises only a suspicion that a fire was caused by the defendant is insufficient. Gainesville, Jefferson c. R. Co. v. Edmondson, 101 Ga. 747, supra.
The testimony of the plaintiff's witnesses as to three fires on or near the right-of-way of the defendant's railroad, when viewed in its entirety, is insufficient to raise an inference that such fires were caused by the operation of the defendant's train. The plaintiff's witness Weldon Childers testified, with reference to the fire near Reeves Station (the only fire he saw on the date the plaintiff's property was destroyed), that it caught some distance from the right-of-way of the defendant; and on cross-examination he stated: "As to whether or not I also said on the former trial the fire I saw was an acre or two away from the railroad track; well, I imagine it would have been something like that, it was a pretty good streak." The plaintiff's witness Watson testified that, when the train passed, the fire near Reeves Station was burning some 20 or 25 feet away from the railroad, and there was no fire near the plaintiff's property.
The testimony of the plaintiff's witness J. C. McDaris, an employee of the Georgia Forestry Commission, to the effect that in his opinion the fire which destroyed the plaintiff's property started near the railroad track, was insufficient to authorize a finding by the jury that the fire which destroyed the plaintiff's property was caused by the operation of the train of the defendant, and especially is this true when considered in connection with all of the testimony in the case, including that as to other fires in the vicinity which were not shown to have originated on the right-of-way of the defendant. The testimony of the witness McDaris is in conflict with that of Pat Baker, former employee of the Georgia Forestry Commission, who testified on cross-examination: "As to approximately where it [the fire on the plaintiff's property] started, well, I would say within seventy-five feet of the railroad track, it might have been closer, but no farther."
The plaintiff's evidence to the effect that there were particles of combustible matter on the right-of-way of the defendant is insufficient to show negligence. There is no duty on the part of the defendant to keep its right-of-way absolutely clean. Western Atlantic R. Co. v. Tate, 129 Ga. 526 ( 59 S.E. 266).
The evidence was insufficient to show that the fire which destroyed the plaintiff's property was set by a hotbox on the defendant's train, or that the defendant was negligent as alleged, and it was error to deny the defendant's motion for new trial.
2. "A defendant does not have the right to ask the court to direct a verdict in his favor on the conclusion of the plaintiff's evidence, because if the plaintiff has not made a case against him, he may move for a nonsuit, or go to the jury with the evidence before them and claim that he is entitled to a verdict on the ground that no case is made out against him, but the court will not on motion order a verdict for the defendant." Smith v. Robinson, 212 Ga. 761, 763 ( 95 S.E.2d 798), and cases cited; Seymour v. Seymour, 210 Ga. 49, 50 ( 77 S.E.2d 433).
The trial court did not err in denying the defendant's motion for a judgment notwithstanding the verdict, since its motion for a directed verdict was properly denied. Ga. L. 1957, pp. 224, 236 (Code, Ann., § 110-113); Shockey v. Baker, 212 Ga. 106, 108 ( 90 S.E.2d 654); Durden v. Henderson, 212 Ga. 807, 808 ( 96 S.E.2d 362).
Judgment affirmed in part and reversed in part. All the Justices concur, except Quillian, J., who is disqualified.