Akins v. Georgia Railroad & Banking Co. , 1900 Ga. LEXIS 745 ( 1900 )

Lumpkin, P. J.

1. There was, on the trial of an action against a railroad company for damages alleged to have been caused by setting fire to the plaintiffs’ woods, no error in rejecting evidence warranting an inference that, shortly before or shortly after the day upon which a particular fire occurred, a locomotive of the company had thrown out sparks from which straw had become ignited, there being no evidence in any manner tending to show that this locomotive was run on the day in question. Gainesville R. Co. v. Edmondson, 101 Ga. 747; Brown v. Benson, Ibid. 753.

2. It is not competent for a witness to testify as to a fact of which he has no knowledge except that derived from referring to a book or memorandum kept or made by another. Admitting testimony of this character is not, however, cause for a new trial, if the fact in question be established by competent and uncontradicted evidence.

Submitted March 13, — Decided April 7, 1900.

Action for damages. Before Judge Reese. Taliaferro superior court. July 21, 1899.

H. M. Holden and C. H. Holden, for plaintiffs. Joseph B. & Bryan Gumming, for defendant.

3. A witness who himself enters in a book a memorandum of a particular occurrence may afterwards testify to the correctness of the entry and to the fact that the occurrence actually took place, although he can not, independently of the memorandum, remember this fact.

4. All the special points of any .consequence which arose in this case are disposed of by the preceding notes. While the evidence was sufficient to raise a suspicion that the fires complained of were set out by the defendant’s locomotives, it did. not require a finding to this effect. This being so, and no material error of law having been committed, the verdict in favor of the defendant will not be disturbed ; for there was sufficient evidence to warrant it, either upon the theory that the defendant did not actually cause the fires, or that, even if it did, it exercised due diligence in keeping its locomotives in good repair and in operating them in a proper manner. Judgment affirmed,.

All the Justices concurring.