Davis v. Bellah , 29 Ga. App. 409 ( 1923 )

ON MOTION FOR REHEARING.

Bell, J.

The court did not overlook any of the matters referred to in the motion for rehearing. Neither did it consider of any value the indefinite evidence of the plaintiff, that, some time after the transaction, certain cinders were found upon the right of way in proximity to the place where the fire was claimed to have originated. Our affirmance was based upon an opinion that there was some evidence, which did not appear in the record of the former trial, to the effect that, notwithstanding it was undisputed that the defendant’s engine was properly equipped with a proper sparkarrester in good condition, some sparks were emitted; and that although in this, under the circumstances, no negligence was present, the inference, in view of the new evidence, was authorized that these sparks set out the fire. The additional evidence was from the engineer and Braswell, the former inspector, witnesses for the defendant. There was evidence on both trials authorizing the inference of negligence by the defendant in permitting combustible material to remain upon its right of way, where it was likely to become ignited from passing engines or otherwise. The new evidence, added to the evidence of the plaintiff, authorized an inference that such negligent accumulation was ignited by the sparks, though the latter in themselves were a non-negligent cause. Our former decision is the law of the case, of course, but the nature of the evidence upon the second trial does not bring the case now made within the limits of the former ruling.

Rehearing denied.

Jenhins, P. J., and Stephens, J., concur.