By the Court.
Lyon, J.,delivering the opinion. '
The Court charged the jury: “That the Macon & Western Railroad Company is a chartered company, having the right to use all the rights and privileges, conferred on it by its charter, as fully, and to the same extent, as an individual has to enjoy his legal rights. That, amongst these, is the right to use their cars and engines, to have their wood and water stations at convenient places, and all the appliances necessary to a complete enjoyment of all their chartered *138privileges. That they have the right to- provide and keep, at their several stations, such supplies of wood as may be necessary, not only for present, but for future use, as circumstances may require — and they are the judges of what amount is necessary; and they are not responsible for accidents happening from the exercise of these rights, unless these accidents result from the gross negligence or carelessness of the employees or agents of the road, and the plaintiff must prove that the injury complained of did result from such culpable neglect or carelessness. The amount of diligence required is' just so much as an ordinarily prudent man could use in his own affairs. If a man chooses to build, or buy, a house in close proximity to a road station, where wood is ordinarily kept for the use of the engines, he does so at his own risk. He voluntarily undertakes to incur the ordinary risks incident to such a location, and if his house is burned, without the culpable negligence of the agents or employees of the company, he has no redress against them.”
1. We think, the charge so- made, fairly presented the law of this case. But when, the Court, in a subsequent portion of this charge, added: “And to make the company liable, the plaintiff must prove, affirmatively, that the quantity (of wood) was unnecessarily large, or unnecessarily extended within dangerous proximity to the plaintiff’s premises, and the injury resulted,” etc.
2. We think, he committed error; for.it was repugnant to the charge he had already given to the jury. If the ro-acl had the right to collect and have wood at the station in such quantities as they think proper or necessary,. and of which they were to judge, the jury had 'no right to consider the quantity of wood, or its extent, in considering whether the road was liable for the injury, nor its proximity to the plaintiff, so long as it was their right to- put their wood at that place. The effect of this qualification, we think, negatived the-principle the Court had previously given to the Jury, and which, we think, to be the law of the case.
3. But, we think, the plaintiff in error is entitled to a new trial on’ another ground, and that is: the verdict is strongly and decidedly against the weight of the evidence and law. Instead of showing that the road, or its employees, were guilty of any gross or culpable neglect, which was necessary to charge' the road" with the plaintiff’s dam*139ages or injury, the evidence disclosed not the slightest neglect of any character. The day was a very dry and windy, one, but the plaintiffs were obliged to use fire in the running of the engines, and in running them along the road, even upon their own property, and in the pursuits of their ordinary and daily vocations.
There is not one fact, to which may be pointed as neglect, or the want of due care and attention. The fact that the ash-pan was kept a little open, is pointed to as a circumstance. The testimony is: that this was usual and necessary, and that the pan was in good order. Another circumstance is: that the fireman was allowed to manage the engine, in shifting the cars, that took place that day at the station. The testimony is: that this was usual, and that he was competent for that purpose. Another, and the only other fact, that I can think of, was referred to, and that was, that the employees did not, at once, drop everything else and try to suppress the fire, or prevent the injury. Their first duty was to save the property in their cars, and which was exposed to the fire. After this was done, I believe, it was not denied but that they rendered all the assistance they could.
To make the railroad company liable for this injury, it must be shown, affirmatively, that the fire occurred from some positive act of neglect or carelessness on the part of the employees of the road. This was not done, and until it is, the plaintiff in error can not be held liable for the misfortunes of the defendant = in error. ■ So a new trial must be granted.
JUDGMENT.
Whereupon, it is considered and adjudged by the Court, that the judgment of the Court below be reversed. The Court, after laying down the rule correctly, that the plaintiff in error had the right to keep-, at their several stations, such supplies of wood as may be necessary for present or future use, and that they are the judges of what is necessary, and that they were not liable for any accident that may happen from the exercise of any of their rights, unless it resulted from the gross negligence or carelessness of its employees, erred in qualifying such rule, by charging the jury that the *140plaintiffs must prove, affirmatively, that the quantity of wood on hand was unnecessarily large, or unnecessarily extended. The Court should have granted a new trial on this ground,, and on the additional grounds that the verdict was contrary to, and without evidence, and against law.