Southern Pine Co. v. Smith , 113 Ga. 629 ( 1901 )

Fish, J.

1. The petition as amended set forth a cause of action, and the grounds thereof were alleged with sufficiency of detail to meet the attacks of the demurrer.

2. The motion for a new trial complains because the court instructed the jury as follows: “ I charge you that it would not be necessary for the plaintiff in this case to prove that the fire, if any at all, occurred upon this particular day; but he must prove substantially the allegations as to date, and that is, that it occurred either upon that date or upon some other day near to the date alleged in his declaration. He must prove that the fire occurred on such a date as to make the proof show a substantial compliance with the allegations’ in his petition; ” and because the court permitted the plaintiff to testify that the fire occurred somewhere between the 10th and 16th of June, 1898. Movant contended tirat as the petition alleged that the fire occurred on June l2,1898, plaintiff could not recover if the fire occurred on any other date, and that the proof should have been restricted to the date alleged. We can not concede the soundness of such contention. It is not essential that, in an action for a tort, the plaintiff must’ prove the commission thereof on the precise day alleged in the petition. In Augusta R. Co. v. McElmurry, 24 Ga. 75, it was held: “If in a proceeding against a railroad company it is alleged that the injury complained of was committed on a different day from that shown by the proof, the variance is not fatal.” There it was alleged that the injury was inflicted on the fourth day of the month, while the proof showed that it was done on the fifth. See Sims v. Railroad Co., 111 Ga. 820.

3. Another ground of the motion for a new trial was, that the court erred in allowing the plaintiff, over the objection of the defendant, to testify as follows: “ I have been on the road walking along at different times, and have seen coals dropping out of the ash-pan. I know the engines of this company were defective otherwise, for I have seen the fire strowing along from underneath the engines; the coals would drop out and fire the rotten cross-ties and straw strown all along the track; and I have sometimes walked along and taken a lot of dirt and throwed on a burning cross-tie and put it out. On one occasion there was a cross-tie afire right there at the corner of my field fence. I was coming up the track and seen the train just pass ahead of me, and whenever I got there I seen the smoke arising, and it was on the end of the cross-tie; there was a live coal there on it about as big as that [indicating with the end of thumb], and I picked up some dry dirt and throwed on it and put it out. Now I done that myself.” The motion recites that such, testimony was “objected to by defendant’s counsel, upon the ground that the same was inadmissible, for the reason that the plaintiff’s petition alleged that the fire occurred on the 12th day of June, and therefore no evidence was admissible except such as fixed that date as the time when the fire occurred; and because the plaintiff could not prove fires on other dates to fix the fact of a fire on the date alleged in his petition.” We have already disposed of the first objection. We do not think the second objection well taken. It is clear that the object of this testimony was not to “prove fires on other dates to fix the fact of a fire on the date alleged in [the] petition,” but it was to show the defective, condition of the defendant’s engines and track. We do not mean to rule that the evidence would have been admissible over a proper objection; as it was held in Akins v. Railroad Co., 111 Ga. 815: “ There was, on the trial of an action -against a .railroad company for damages alleged to have been caused by setting fire to the plaintiff’s 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.” .What we do decide is, that while the evidence . was irrelevant, its admission was not cause for a new trial, when no valid objection to its admission was made. “Although there may be a ground of objection to testimony which would have been good if made, yet if the objection made is not good, it will be overruled.” Cox v. Cody, 75 Ga. 175.

4. We have considered very carefully all the evidence in the record, and have arrived at the conclusion that the jury could find .from the evidence submitted in behalf of the plaintiff that the fire was caused by sparks emitted from the smoke-stack of the defendant’s engine, and that the defendant was negligent in not having its engine, equipped with a proper spark-arrester. The verdict was approved by the trial judge, and we can not say that he abused his discretion. Judgment affirmed.

All the Justices concurring.