Ga. R. & Banking Co v. Churchill

• Decision Date: 25 March 1901
• Citation: 113 Ga. 12,38 S.E. 336
• Parties: GEORGIA R. & BANKING CO. v. CHURCHILL.
• Court: Georgia Supreme Court

38 S.E. 336

113 Ga. 12

GEORGIA R. & BANKING CO.

v.CHURCHILL.

Supreme Court of Georgia.

March 25, 1901.

RAILROADS—INJURY TO STOCK—EVIDENCE— REVIEW—RECEPTION OF EVIDENCE.

1. Ordinary domestic animals may, in this state, generally, range upon the right of way of a railroad company or other uninclosed lands. They, therefore, cannot be regarded as trespassers upon the track of a railroad company; and, relatively to the owner of live stock injured by a running train of the company, it is the duty of the company, through its delegated agents or employes, to keep a look out ahead of the train, using ordinary and reasonable diligence to discover the stock upon the track and to avoid injury thereto.

2. This court cannot consider an exception to the overruling of objections to a certain question when it does not appear what answer was made by the witness to whom the question was propounded.

3. Whether, after the plaintiff has closed his case in chief and the defendant has closed its evidence, the plaintiff should then be allowed to introduce evidence not in rebuttal, is a matter within the discretion of the trial court. Such discretion, unless manifestly abused, will not be interfered with by this court.

4. There was evidence to authorize the verdict.

(Syllabus by the Court.)

Error from superior court, McDuffle county; E. L. Brinson, Judge.

Action by C. N. Churchill against the Georgia Railroad & Banking Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Jos. B. & Bryan Cumming, for plaintiff in error.

Thos. E. Watson, John T. West, and James K. Hines, for defendant in error.

SUMMONS, C. J. Suit was brought against the railroad company for the value of certain horses killed upon the track of the company, not at a public crossing, by one of the company's trains. The jury found for the plaintiff, and the defendant moved for a new trial. The motion was overruled, and the movant excepted.

1. One of the grounds of the motion for new trial was that the court erred in refusing a request to give in charge the following: "The railroad company is under no duty to anticipate that there is stock on the track, nor is the engineer or fireman obliged to keep a lookout for stock that may possibly be on the track. The duty of the railroad company does not arise until the presence of the stock becomes known to the train people. When fhe engineer does discover that stock is on the track, then he must use ordinary care to avoid striking the stock." Minor defects aside, this amounted to a request to charge that the company owed no greater degree of diligence to stock upon the track or to the owner than to persons trespassing thereon We think that the refusal of the judge to so charge was correct. It has been expressly ruled by this court that: "In Georgia, ordinary domestic animals and railroad trains are equally free, as respects each other, to pass over uninclosed lands. If they come in collision, with damage to either, the diligence of their respective owners will become material on the question of compensation." Railroad Co. v. Neely, 56 Ga. 540. In that case Judge Bleckley said: "Georgia, for the most part, is unfenced. For purposes of mere transit, uninclosed territory is here scarcely less common to things that go upon land than are the high seas to ships and steamers. Cattle have in this state, generally, license to range at large at the will of their owners. * * * Corporations are not bound to fence their lines, nor farmers to confine their ordinary domestic animals." See, also', Railroad Co. v. Lester, 30 Ga. 911. In this state, therefore, domestic animals have a right to go upon the right of way of a railroad company, and cannot be regarded as trespassers thereon. ' It was therefore proper to refuse to charge that the company owed to live stock upon the track no duty until their presence or danger was discovered. Under our Code, the presumption as to negligence is against the company when the killing by its...