Georgia Railroad v. Lawrence , 74 Ga. 534 ( 1885 )

Blandeord, Justice.

Defendant in error brought his action against the plaintiff in error, and by his declaration claimed that he had sustained damages by reason of the careless running of the engines of plaintiff in error, whereby his fences were destroyed by fire and his crops injured and destroyed. Evidence was admitted without objection, which tended to. show that the grass on the right-of-way of the railroad was set on fire from sparks of the engines of defendant’s company, and that from this the fences of the plaintiff below were set on fire and destroyed. This is the only evidence of neglect on the part of the railroad company. Under the pleadings in the case, it may be that the testimony as to the burning of the grass on the-'railroad company’s right-of way was inadmissible; yet it was admitted without objection; it was before the jury for their consideration, and, as decided by this court in the case of Ocean Steamship Company vs. Williams, 69 Ga., 251, where evidence is admitted without objection, although there is no allegation in the declaration authorizing the same, it is proper for the court to charge the jury as to its legal effect. So we think that this testimony tended to show negligence on the part of plaintiff in error.

We are unanimously of opinion, and so rule, that where pi operty of a person has been destroyed by fire on account of the running of the engines of a railroad company, without fault or negligence of such railroad company or its agents in any way, in such a case, the railroad company would not be liable.

There was no error in refusing the new trial.

Judgment affirmed.