The Atlanta & West Point R.R. v. Hudson

• Decision Date: 28 February 1879
• Citation: 62 Ga. 680
• Parties: The Atlanta & West Point Railroad. v. Hudson.
• Court: Georgia Supreme Court

62 Ga. 680

The Atlanta & West Point Railroad. v. Hudson.

Supreme Court of the State of Georgia

(February Term, 1879.)

Justice Courts. Pleadings. Railroads. Damages. Fence. Diligence. Before Judge Buchanan. Campbell Superior Court. August Term, 1878.

Hudson brought complaint against the railroad for damages to personal property. Attached to the summons was a statement, in brief, as follows: On April 7th, 1878, the defendant, by the running of its locomotives, etc., having before that time enclosed its track with an unlawful fence, the wire thereon being supplied with sharp, dangerous barbs or points, caused one mare belonging to plaintiff, of the value of $100.00, to become entangled in said wire on said fence, whereby she was bruised, to the damage of plaintiff $100.00.

The defendant pleaded not guilty, and that if the mare was injured, it was the plaintiff's fault, for which the defendant was not liable.

The magistrate rendered judgment for the plaintiff for $50.00, and the defendant appealed.

The evidence, upon the trial in the superior court, disclosed the following facts: The defendant, at the place of the injury, had erected a wire fence lor the purpose of keeping stock off its track. The posts of this fence were sixteen feet apart, connected by two wires; the top wire was about three feet from the ground, and the distance between the wires from eighteen inches to two feet. On the *wires were sharp barbs or points, placed there for the purpose of keeping stock from pushing the fence down. Upon the approach of the train, the horse was on the right-hand side of the road; thence he ran down on to the track, followed it for a short distance, and then crossed to the left, where the wire fence was. He struck the fence at about ten feet from the track, fell on it, and was considerably injured.

As to the diligence exerted by the employees of the defendant in control of the train, the evidence was conflicting; that for the plaintiff tended to show that no whistle was blown until the engine was immediately opposite the mare, which was standing quietly by the fence; that then short and repeated whistles came from the engine, frightening the animal, causing her to attempt to break through the fence and thus injuring her; that the speed of the train was not checked at all. The employees on the train testified that alarm whistles were blown as soon as the mare was discovered on the track, and continued until the speed was slackened from twenty or twenty-five miles per hour to ten miles; that it was necessary to continue the whistling to keep the mare ahead, in order to stop the train, and also to keep her off the track after she had left it. That everything possible was done to prevent any injury to the animal.

A part of the evidence as to value, hire, etc., went to show that the mare was used for work on the farm, was worth before the injury $100.00, was unfit to plow for two weeks, during which time, it being plowing season, her hire was worth $1.00 per day; and that her value was impaired by the injury some seventy-five per cent.

The jury found for the plaintiff $69.00. The defendant moved for a new trial upon the following grounds:

1. Because the court erred in allowing proof as to the value of the horse per day for plowing, the defendant objecting upon the ground that such evidence was not authorized by thepleadings.

*2. Because the verdict was contrary to law and to evidence.

3. Because the verdict was contrary to the charge of the court, the only material portion of which was as follows:

"If you believe from the evidence in the case, that the defendant erected the fence at the place where the horse was injured, and if you believe, from the evidence, that the natural tendency of the fence was to injure stock, and if you believe, from the evidence, that the defendant, by the running of the locomotives, cars or other machinery, without ordinary care and reasonable diligence, caused the mare to run against the fence, and that she thereby became injured, the plaintiff would be entitled to recover. But if the employees of defendant, in the running of locomotives or other machinery of the defendant, used and exercised ordinary care and reasonable diligence to prevent the injury, the plaintiff would not be entitled to recover."

The motion was overruled, and the defendant excepted.

Thomas W. Latham, for plaintiff in error, cited, on objection to evidence, constitution of 1877, art. 6, sec. 7, par. 2; 45 Ga., 601; 44 Ib., 123; 40 Ib., 231. Verdict contrary to law and evidence, Code, sees., 3000, 3717; 3 Blackstone's Com., 170; 27 Ga., 481; 15 Ib., 61; 28 Ib., 418; 38Ib., 541; 39 Ib., 725: 42 Ib., 631; 9 Ib., 425; Wood on Nuisance, 896. Negligence, Code, sees. 3033, 30 4, 3 042; 56 Ga., 540; 48 Ib., 464; 13Ib., 68; 33 Ib., 110; 30 Ib., 22; 31 Ib., 133; 29 Ib., 437.

Reid & Longino; R. M. Holley, for defendant, cited, on admission of evidence, Code, sees., 3065, 3068, 3071; 43 Ga.. 601. Verdict contrary neither to law nor evidence, Code, sees. 3033, 3034, 3042, 3368; 56 Ga., 541; 42 Ib., 304, 331; 49 Ib. 373, 606; 1 Addison on Torts, 214; Shear. & Red. on Neg., 344, 463. Fence was nuisance, Code, sec. 3000; 2 Bouv. L. Dic, 245; 3 Blackstone\'s Com., top p. 170; 39Ga., 725,.

*BLECKLEY,...