Central R.R. v. Hamilton

• Decision Date: 06 November 1883
• Citation: 71 Ga. 461
• Parties: THE CENTRAL RAILROAD v. HAMILTON.
• Court: Georgia Supreme Court

71 Ga. 461

THE CENTRAL RAILROAD v. HAMILTON.

Supreme Court of Georgia.

November 6, 1883

September Term, 1883.

1. In a suit against a railroad for killing a cow, in a county where the law provided that stock should not run at large requests to charge that if the plaintiff permitted her cow to run at large, and it was killed by the defendant's cars the former would be guilty of negligence and could not recover, were properly refused. It was not for the court to single out any one of a number of facts, and tell the jury that it constituted such negligence as would deprive the plaintiff of her right to recover.

2. Repeals of laws by implication are not favored; indeed, it may be questioned whether they exist at all under the constitution of this state.

( a. ) What are known as the stock laws, embodied in Code, §§1449-54, are not in pari materia with §§3033-4, and do not modify or alter the rule of diligence to be observed in the running of trains; but the existence of a stock law in any locality is a fact which the jury may consider, in ascertaining the amount of care and diligence exercised by each of the parties to the transaction, and in apportioning the extent of the liability of the company, if any.

Laws. Fences. Railroads. Damages. Negligence. Before Judge STEWART. Spalding Superior Court. February Term, 1883.

Amanda Hamilton brought suit in the county court of Spalding county against the Central Railroad, for the value of a cow killed by the defendant's train. Plaintiff recovered a judgment and defendant appealed to the superior court. On the trial the evidence showed that the cow was killed by the train, but the defence rested on the question of negligence in the railroad and the owner of the cow respectively. What is known as the stock law was in force in Spalding at the time, prohibiting owners of stock from allowing them to run at large. (See Code, §§1449-1454.) The husband of the plaintiff testified that the cow was turned out of a lot in Pike county, in which there was no stock law, and wandered into the adjoining county of Spalding, where she was killed. The jury found for the plaintiff $40.00, with interest from the date of the injury. Defendant moved for a new trial, on the following among other grounds:

(1.) Because the verdict was contrary to law and evidence.

(2.) Because the court refused to charged the following request: " It is against the law of this state, as applicable to Spalding county, for stock to run at large. This being the law, if the owner of the cow that is alleged to have been killed permitted it to go at large in the county of Spalding, the owner would be guilty of negligence, and if such negligence caused the cow to be killed, the plaintiff cannot recover.

(3.) Because the court refused to charge the following request: " If the cow of plaintiff was permitted to go at large, and was killed by the defendant's cars in the county of Spalding since the adoption of the stock law, then defendant would not be guilty of negligence, and plaintiff could not recover."

(4.) Because the court refused the following request: " If plaintiff permitted her cow to run at large, and if her cow was upon the right of way of defendant in the county of Spalding when killed, then plaintiff cannot recover, unless the evidence shows that the engineer did recklessly and wilfully run the engine on the cow."

(5.) Because the court charged as follows: " It is proper for you to consider whether the cow was found and killed in a county where the stock law is in force; that is to say, where the law required people to keep up their stock; it is proper for you to consider, if that was shown, whether or not these officers and agents of this railroad company would or would not have the right to presume there was no stock there at the place where the cow was killed."

The motion was overruled, and defendant excepted.

W. L. WATTERSON; JOHN I. HALL, for plaintiff in error.

HENRY WALKER; L. CLEVELAND, for defendant.

HALL Justice.

The principal question presented by this case is, what effect, if any, the provisions of the law, in counties where it is of force, requiring stock to be kept up, has upon the liability of railroads for killing the same in such localities, by the running of their trains? Does this law, which is embodied in §§1449, 1450, 1451, 1452 of the Code, modify or alter the rule of diligence to be observed in the running of trains in such cases by §§3033 and 3034 of the Code— viz: That the company shall be liable for damage done to stock by its locomotives or cars, or by any person in its employment unless it shall make it appear that its agents have exercised " all ordinary and reasonable care and...