Albany & Northern Railway Co. v. Wheeler , 3 Ga. App. 414 ( 1908 )

Powell, J.

A railroad company is bound to use only ordinary care and diligence to prevent the communication of sparks from its locomotives. An instruction which is fairly susceptible to the criticism that it tended to mislead the jury into believing that the railway company was required to have its locomotives equipped with a spark-arrester “of the latest approved pattern in general use” is erroneous. In the case at bar, the state of the pleadings and the ehai’ge, taken as a whole, do not, as they did in the case of Alabama Midland Ry. Co. v. Guilford, 119 Ga. 526 (46 S. E. 655), render the error harmless. See Atlanta & Birmingham Air-Line Railway v. McManus, 1 Ga. App. 303 (5 a), 307 (58 S. E. 258), and cases therein cited.

Judgment reversed.