Tennessee, Alabama & Georgia Railway Company v. Andrews

• Decision Date: 31 January 1968
• Docket Number: No. 43265,No. 1,43265,1
• Citation: 159 S.E.2d 460,117 Ga.App. 164
• Court: Georgia Court of Appeals
• Parties: TENNESSEE, ALABAMA & GEORGIA RAILWAY COMPANY v. J. A. ANDREWS

Page 460

159 S.E.2d 460

117 Ga.App. 164

TENNESSEE, ALABAMA & GEORGIA RAILWAY COMPANY v. J. A. ANDREWS.

No. 43265.

Court of Appeals of Georgia, Division No. 1.

Jan. 31, 1968.

Syllabus by the Court

Since the abolition of the open range in this State by adoption of the Act of 1955 (Ga.L.1955, p. 633), amending the Act of 1953 (Ga.L.1953, p. 380), loose livestock going upon the lands of others, including a railroad right of way, are trespassers, and the duty owed them by the landowner or the railroad company is not wilfully or wantonly to injure them.

J. A. Andrews brought suit against the Tennessee, Alabama & Georgia Railway Company seeking to recover for the killing by defendant's train of two calves which had escaped his pasture and gone upon the railroad right of way. He alleges failure of the defendant's servants in charge of the train to exercise ordinary care and diligence in keeping a lookout ahead, blowing the whistle, ringing the bell, in property sanding the rails, and taking proper measures to stop the train when the calves were seen on the track.

Defendant's general demurrer was overruled. The case was tried and a verdict for plaintiff was returned. From the overruling of its general demurrer, the denial of its motion for a directed verdict and its motion for judgment notwithstanding the verdict, defendant appeals.

F. H. Boney, Summerville, for appellant.

Brown & Clements, Burton Brown, LaFayette, for appellee.

EBERHARDT, Judge.

This case was filed and all judgments excepted to were entered prior to the effective date of the Civil Practice Act; consequently its provisions have no application, and insofar as any rule of trial practice or procedure may be involved, we must apply the law as it stood at the time the judgments were entered. Abercrombie v. Ledbetter-Johnson Co., 116 Ga.App. 376, 378, 157 S.E.2d 493. That Act, of course, made no change in the body of applicable substantive law.

1. The general demurrer raises the question of whether the Act of 1953 (Ga.L.1953, p. 380), as amended by the Act of 1955 (Ga.L.1955, p. 633), requiring that uniformly and throughout the State ¹ owners of livestock shall not permit them to run at large on or stray upon the public roads or on any property not belonging to the owner of the livestock unless by permission of the property owner (Code Ann. §§ 62-1601, 62-1604), has changed the rule as to the duty owing by a railroad in the operation of its trains to animals straying upon its right of way.

At common law every owner of livestock was required to keep them off the lands of others, and if they were permitted to stray thereon the animals were trespassers. But in the early days of this country it became the general custom to allow cattle, horses, hogs and the like to roam and range at large on the uninclosed lands of the neighborhood in which they were kept, making them quasi commons. This was due to the great value of the uninclosed lands as pasturage for these animals, and to the scarcity and high cost of fencing. Consequently, the common law rule was rejected and it was held either that the roaming animals were not trespassers, or that if they were the owner of the uninclosed land impliedly consented to the trespass. 4 Am.Jur.2d 302, Animals, § 49.

The general rule then adopted was that the owner of lands should fence his crops to protect them from the roaming livestock. 'Where a whole country abounds in loose stock, he who wishes to protect his land from their visits, must enclose it.' Macon & Western R. Co. v. Lester, 30 Ga. 911, 914. Thus the unenclosed lands were for the most part woodlands, uncultivated and unimproved lands. Conditions in this State were within this description and the common law rule was rejected in Macon & Western R. Co. v. Lester, supra, the court holding that 'Loose stock are not trespassers on unenclosed lands in this State.' This, however, was limited to situations in which the owner of the lands on which the animal might stray was held liable for doing harm to it by some active negligence. If the negligence were passive only, such as putting out poison to kill or inhibit the growth of undesired vegetation, the animal straying on the land and suffering injury from eating the poisoned vegetation was held to be a trespasser, and the landowner could be held only for wilfully and wantonly injuring it. McKenzie v. Powell, 68 Ga.App. 285, 22 S.E.2d 735. Cf. Atlantic Coast Line R. Co. v. O'Neal, 180 Ga. 153, 178 S.E. 451.

With the growth of the country came the railroads and their rights of way running through the uninclosed lands. For various reasons loose stock were often on the right of way and many were injured. The General Assembly felt that there should be some protection to the owners of these animals, and Acts were adopted in 1847, 1850 and 1855 providing for arbitration of questions of liability and damages. See a discussion of these in Macon & Western R. Co. v. Davis, 13 Ga. 68 and Georgia R. & Banking Co. v. Anderson, 33 Ga. 110. These Acts were forerunners of what became § 2978 in the Code of 1861: 'A railroad company shall be liable for any damage done to persons, slaves, stock, or other property, by the running of the locomotives, or cars, or other machinery of such company, or for damage done by any person in the employment and service of such company, unless the company shall make it appear that their agents have exercised all ordinary and reasonable care and diligence, the presumption in all cases being against the company.' This section appeared, unchanged, as § 2321 in the Code of 1895, § 3033 in the Code of 1882, and 2780 in the Code of 1910. In 1929 it was held to be unconstitutional in Western & Atlantic Railroad v. Henderson, 279 U.S. 639, 49 S.Ct. 445, 73 L.Ed. 884, and has not since appeared in the Code.

However, to meet the ruling of the Henderson case, the General Assembly of 1929 adopted what now appears as Code §§ 94-1108, 18-607 and 68-710, making proof of injury prima facie evidence of a want of reasonable care and skill on the part of the servants of the company who may have operated the offending train.

In the meantime growth in the population was causing a radical change in the conditions which had brought about the 'open range' and the rejection of the common law rule as to straying animals. Beginning in 1872 the General Assembly made provision whereby the residents of a militia district, or of a county, might petition the ordinary to call an election and allow them to vote on the question of whether owners of livestock must refrain from allowing them to roam beyond the owner's lands, and making the stray animals subject to being impounded, or whether the owners of cultivated lands must continue to fence their crops to protect against the straying animals. See Chapter 62 of the Code of 1933, where the several acts, together with prior Acts defining a lawful fence, were collected.

Soon after 1872 the more populous centers began to call elections, and from time to time a militia district or a county voted itself as a 'no-fence' area-that is to say, an area in which no fence for the crops was to be required. Instead, owners of livestock were compelled to fence them.

As this occurred the railroads began to ruge upon the courts, in suits brought against them for the injury or killing of livestock by trains, that since owners were required to fence the cattle and the railroad was relieved of any necessity for fencing its right of way, loose stock straying upon the right of way in a 'no-fence' area were trespassers, so that the railroad could be held only for a wilful or wanton injury inflicted. Apparently, since the number of the 'no-fence' areas was then small and the open range areas were great in size, the courts felt that a uniform rule should be maintained throughout the State. In any event, at that time the Code section imposing liability for injury to livestock from the operation of the trains had not been altered or stricken down by the U. S. Supreme Court. This section made ordinary care the standard in all situations, thus negating the possibility of an inconsistent holding that the straying animal was a trespasser to which a lesser standard of care was owed. That the continuation of a rejection of the common law rule as to trespassing animals was planted squarely upon this Code section is made clear by Chief Justice Bleckley in Central R.R. Co. v. Summerford, 87 Ga. 626, 629, 13 S.E. 588, where it was declared that 'This rule of diligence was not modified or altered by subsequent legislation known as the 'stock law.' (Central) Railroad v. Hamilton, 71 Ga. 461. With or without the stock law, the degree of diligence required of railroad companies is one and the same; it is 'ordinary and reasonable."

Continued reliance on the code section imposing liability on railroads was the status when it was declared to be unconstitutional by the Supreme Court of the United States in Western & Atlantic Railroad v. Henderson, 279 U.S. 639, 49 S.Ct. 445, 73 S.Ed. 884, supra, after which it was no longer viable.

The legislation adopted to meet this ruling is substantially different from that which had...