Hendricks v. Southern Railway Co.

1. An action for damages was brought against a railway company on the ground that a house located near the railroad track was set on fire by sparks negligently emitted from an engine pulling one of the defendant’s trains. A verdict was rendered in favor of the' plaintiff, and on motion a new trial granted. On. a second trial a verdict was again rendered for the plaintiff, for a slightly smaller sum. A second motion for new trial was made, and, upon the hearing before a different judge from the one who presided at the trial, it was granted. The motion contains no grounds assigning error in rulings of the court which would authorize a new trial, and the evidence was sufficient to sustain the verdict. Held, that the verdict should have been allowed to stand, and the grant of a second new trial was error. 2. The will of a married woman named her husband as executor, “with full and ample power to take charge of her entire property, personal and real, to manage it as in his discretion seemed best to him, to sell and convey and reinvest the' proceeds of any sale made in both personalty and realty as he deemed best; and all sales of both personal and real property to be solely in the discretion of her said executor at private or public sale, or in such manner and on such terms as he saw fit to adopt relative to any and all her property, without any order from the court of ordinary for such sale or reinvestment; that her said executor was to be left, in the management of her said estate, to his own discretion, and should not be compelled to make returns of his acts and doings in the premises, she reposing entire confidence in his judgment and discretion to manage the property for the best interest of his and her children, without any interference by the court or orders and directions therefrom; she therefore gave him [power] to manage without restrictions all her said property, leaving it with him when and where to divide it out among their children, or to keep it together as long as he lived, or until the youngest child became of age, before any division thereof; or to make provision earlier or at any time that he saw fit and in the manner that he thought best; that her said executor should not be made to account for the management or disposition of her property or the proceeds thereof, but should have absolute and untrammelled control of her' entire estate during his life without liability therefor; and at his death the estate then in his hands should be divided equally between his children, share and share alike; but should the said executor make any advances to any child during his or her life as part of his or her said child’s distributive share in the estate of testator, then such advances so made shall be accounted for by such child in the distribution among the children of testator.” Held, that this provision did'not vest the legal estate at once in the husband individually. The executor had the right to keep 'the estate intact and manage it at least until the youngest child became of age; and for the negligent destruction of property forming a part of such estate during that time he could sue as executor. 3. On the trial of an action based on the contention that property was negligently set on fire by sparks emitted by a railroad engine, it being in controversy whether the engine was properly equipped and handled, evidence tending to show that on that day, and near the time of the alleged burning, the same engine threw ont sparks and. cinders which set Are to grass along the right of way of the railroad at two different points, was admissible.

Action for damages. Before Judge Roberts. Pulaski superior court. December 27, 1904.