Green v. Heard Mill. Co.
| Decision Date | 30 January 1969 |
| Docket Number | No. 2,No. 44002,44002,2 |
| Citation | 166 S.E.2d 408,119 Ga.App. 116 |
| Parties | Hubert GREEN v. HEARD MILLING COMPANY, Inc |
| Court | Georgia Court of Appeals |
William A. Ingram, Cartersville, for appellant.
Samuel P. Burtz, Canton, for appellee.
Syllabus Opinion by the Court
Heard Milling Company, Inc. brought this suit based on negligence against Hubert Green, to recover for property damages caused when plaintiff's tractor-trailer truck collided with defendant's stray cow. See Code Ann. § 62-1604. Defendant counterclaimed for the value of the cow. Trial of the case resulted in a verdict for plaintiff.
1. In Porier v. Spivey, 97 Ga.App. 209, 211, 102 S.E.2d 706, this court held: The mere fact that livestock is running at large permits an inference that the owner is negligent in permitting the livestock to stray; but when the owner introduces evidence that he has exercised ordinary care in the maintenance of the stock, that permissible inference disappears. Defendant here contends that testimony as to his care in maintaining his pasture fence demanded a verdict in his favor under the principle stated in Porier. We reject this contention as we did in Law v. Hulsey, 109 Ga.App. 379, 380, 136 S.E.2d 161, for the reason that the transcript contains evidence of defendant's negligence other than the mere fact that the animal had strayed onto the highway. There was contradictory testimony that there was a hole in the pasture fence near the place where the collision occurred, as well as testimony that a gate was open on the back side of the pasture. The denial of defendant's motion for a directed verdict was not error.
2. In response to plaintiff's motion for a directed verdict on defendant's counterclaim, the court did not err in refusing to submit to the jury the issues raised in the counterclaim or in instructing them to disregard it. As livestock running at large on a public road are trespassers, a motorist is liable only for wilful and wanton negligence in injuring the animal. Tennessee, Ala. & Ga. R. Co. v. Andrews, 117 Ga.App. 164, 170, 159 S.E.2d 460. There was no evidence sufficient to authorize a finding that plaintiff's driver was guilty of that degree of negligence.
3. The evidence authorized a verdict for plaintiff. However, the verdict exceeded by $500 the amount of damages pleaded and proved by the evidence. As this obvious was due to mathematical error, the judgment will be affirmed with direction that the...
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...v. Beverly, 124 Ga.App. 842, 186 S.E.2d 436; L & N R. Co. v. Moreland, 122 Ga.App. 850, 854(1), 178 S.E.2d 904; Green v. Heard Milling Co., 119 Ga.App. 116(1), 166 S.E.2d 408. We have frequently cautioned that, although the language used in an appellate decision may embody sound law, it is ......
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...in terms of time and location to the defendant's maintenance of the fencing here in issue). Compare Green v. Heard Milling Co. , 119 Ga. App. 116 (1), 166 S.E.2d 408 (1969) (conflicting testimony of a hole in pasture fence, coupled with testimony that a back gate was open, was sufficient ev......
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...that he has exercised ordinary care in the maintenance of the stock, that permissible inference disappears.' Green v. Heard Milling Company, Inc., 119 Ga.App. 116, 166 S.E.2d 408. The evidence showed that the pasture gate was left unlocked but not left open. The plaintiff stated that: he ex......
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...Accordingly, the trial court did not err in denying appellants' motions for judgment n.o.v. Austin, supra; Green v. Heard Milling Co., 119 Ga.App. 116(1), 166 S.E.2d 408 (1969). 2. Appellants next enumerate as error the trial court's refusal to allow appellants to introduce evidence that ap......