Opinion
36441.
DECIDED JANUARY 18, 1957. REHEARING DENIED FEBRUARY 5, 1957.
Tort; cattle killed by train. Before Judge Lilly. Thomas Superior Court. August 1, 1956.
Bennet Vann, W. W. Alexander, Thomas K. Vann; Alexander, Vann Lilly, for plaintiff in error.
E. P. McCollum, Jesse J. Gainey, Titus, Altman Johnson, Charles F. Johnson, contra.
1. The special demurrer to the petition is expressly abandoned by counsel.
2. "Generally, the stock law, known as the no-fence law, does not change the degree of negligence [of a railroad] from ordinary negligence to wilful and wanton negligence. The fact that the damage alleged is in a locality where the stock law is in operation may be considered along with all the other facts and circumstances of the case where, as here, the acts of negligence alleged are acts of active negligence rather than statical negligence to be determined by the jury as to whether the railroad is liable."
3. Under the facts of this case and the court's charge as a whole, there was no error in the court's failure to charge: "The measure of damages for the killing of livestock is the fair market value of said livestock at the time of the killing," especially in the absence of a request so to charge.
4. "In the absence of a written request for the court to define to the jury the meaning of the words `ordinary and reasonable care and diligence', there was no error in the omission to do so."
5. Special ground 8 of the motion for a new trial is treated as abandoned.
6. The evidence authorized the verdict.
DECIDED JANUARY 18, 1957 — REHEARING DENIED FEBRUARY 5, 1957.
As counsel for the plaintiff concedes that the substance of the pleadings is correctly set forth in the brief submitted by counsel for the defendant, we shall more or less follow that statement in setting forth our statement of facts. The plaintiff filed his action against the defendant in the Superior Court of Thomas County alleging that the defendant, between 6 p. m. and 7 p. m. on July 16, 1953, was negligent in killing certain cattle belonging to the plaintiff on the defendant's right-of-way in Thomas County to the plaintiff's injury and damage in the sum of $8,300, the alleged value of six head of cattle alleged to have been killed. The plaintiff alleged that the defendant was negligent in failing to keep a lookout ahead, in failing to see the cattle on the tracks, in failing to blow the whistle or ring the bell to warn the cattle, in failing to reduce the speed of the train or bring it under control or do anything else to avoid striking the cattle. The plaintiff alleged that it was daylight at the time the cattle were killed and that the railroad track was straight and unobstructed in view for one mile. The plaintiff alleged that a fence post about the northeast corner of his pasture on the south side of the railroad gave way and fell, leaving an opening in the fence through which the plaintiff's cows went out and onto the tracks and right-of-way of the defendant, that during the morning of that same day, the plaintiff had inspected the fence and no post was down nor was there any opening in the fence.
The defendant filed its general demurrer to the petition and one special demurrer based upon the ground that the petition did not allege whether Thomas County was a "fence" or "no-fence" county. The defendant filed its answer either denying or negativing every paragraph of the petition. In addition, the defendant affirmatively alleged that Thomas County was a no-fence county, that the plaintiff's cattle were trespassing on the defendant's right-of-way, that its only duty was not to wilfully and wantonly injure the cattle after discovering their presence, that it had no reason to anticipate the presence of such cattle, that the sole proximate cause of any injury and damage to the plaintiff's cattle was the negligence of the plaintiff in failing to keep the cattle enclosed and off the defendant's right-of-way.
The defendant's demurrers were overruled and error is assigned here upon that judgment.
On the trial of the case it was stipulated that Thomas County is a county having adopted the stock law as provided in chapter 62-5 of the Code of Georgia of 1933, which law was in full force and effect at the time of the killing of the cattle for which suit was brought. The jury found in favor of the plaintiff for the sum of $7,175 and judgment was rendered accordingly.
The defendant's motion for a new trial, based upon the usual general grounds and 11 special grounds, was denied, and error is assigned here on that judgment.
1. The one special demurrer, based on the failure of the plaintiff to allege whether Thomas County was a fence or no-fence county, is expressly abandoned by counsel for the defendant in his brief on file in this court and presents no question for determination by this court. Code § 6-1308.
2. The general demurrer and special grounds 2, 3, 4, 6, 7, 9, 10, and 11 all present various facets of the same question and will be considered here together. This question is what degree of care is owed by a railroad company in the operation of its trains to livestock on its tracks and right-of-way in a no-fence county? Counsel for the defendant railroad contends that under the provisions of Code § 62-501 the owner of livestock must fence his cattle, and in a no-fence county cattle coming upon the right-of-way of the railroad company are trespassers, which changes the railroad's duty from one of ordinary care to avoid injuring cattle on its right-of-way to a duty not to wilfully and wantonly injure cattle upon its right-of-way after it has discovered their presence. Whatever the trend may be in other States, the duty owed by the railroad to cattle in a no-fence county is no longer open to question in Georgia. In 11 GBJ 495, Mr. Sidney O. Smith, Jr., of the Gainesville Bar, in reviewing Aycock v. Callaway, 78 Ga. App. 219 ( 51 S.E.2d 53) has quite cogently expressed the status of the law as it exists today in this State: "At common law, the owner of domestic animals was bound to keep them off the land of others and a failure to do so constituted trespass. Gayler Pope v. Davies Son, 2 K.B. 75 (1924); Light v. United States, 220 U.S. 523, 31 S. Ct. 485 (1911). Many States, however, repudiated the rule as inapplicable to the conditions of our fast developing country. 2 Am. Jur. 771. Georgia early sustained this view. Macon Western Railroad Co. v. Lester, 30 Ga. 911 (1859). Thus, prior to the enactment of the stock law (Ga. Acts 1872, p. 34), cattle could not be deemed trespassers in any event.
"If the stock law is adopted, the county is commonly called a `no-fence' county. Ga. Code (1933) Sec. 62-501. The duty thereunder falls upon the cattle-owner to fence in his stock. Ga. Code (1933) Sec. 62-601. It is strongly indicated by the impounding statutes that damage done by an animal under such circumstances now constitutes a trespass. Ga. Code (1933) Secs. 62-602, 603. Such an interpretation seems reasonable in view of the tendency to return to the common-law rule. Prosser, Handbook of the Law of Torts, 434 (1941); Comment, 5 La. L. Rev. 316 (1943); see 22 L.R.A. 55 (1909). In this connection it is interesting to note that Mr. Prosser cites the Georgia case holding the stock law constitutional in support of the proposition, viz. Puckett v. Young, 112 Ga. 578, 37 S.E. 880 (1901). As our nation stabilizes, the factors calling for return to the common-law rule appear just as strong as those originally requiring its overthrow.
"On several occasions in the past the Georgia courts have held that a loose animal under the stock law is a trespasser. Harvey v. Buchanan, 121 Ga. 384, 49 S.E. 281 (1904), [Vicious Animals]; McKenzie v. Powell, 68 Ga. App. 285, 22 S.E.2d 735 (1942), [Statical Negligence]. Where the effect of the stock law is provided by municipal ordinance then such cattle are clearly trespassers. Thombley v. Hightower, 52 Ga. App. 716, 184 S.E. 331 (1936), [Damage to Crops].
"It would appear, then, that the rule of negligence should change. Ga. Code (1933) Sec. 94-703. Undoubtedly it does when the negligence complained of is `static', rather than `active'. McKenzie v. Powell, supra. Or when the trespasser is a mere human. Cook v. Southern Ry. Co., 53 Ga. App. 723, 187 S.E. 274 (1936); Thornton v. Southern Ry. Co., 71 Ga. App. 530, 31 S.E.2d 189 (1944). Strangely, a greater degree of care is owed trespassing animals.
"The courts have reached this position chiefly because of decisions holding that the stock law did not change the degree of care previously imposed by statute. Central Railroad Co. v. Hamilton, 71 Ga. 461 (1883); Central Railroad Co. v. Summerford, 87 Ga. 626, 13 S.E. 588 (1890); Atlanta West Point Railroad Co. v. Hudson, 2 Ga. App. 352, 58 S.E. 500 (1907). It will be noted that the Code section relied upon in these cases (Ga. Code (1882) Sec. 3033) [Code (1910) § 2780] was later declared unconstitutional on the grounds of the presumption raised. Western Atlantic Railroad v. Henderson, 279 U.S. 639, 49 S. Ct. 449 (1929). The present railroad liability statutes prescribe no particular degree of care toward animals. Ga. Code (1933) Sec. 94-701, et seq. It is generally termed by the courts to be ordinary care. E. g. Powell v. Nelson, 52 Ga. App. 351, 183 S.E. 348 (1936); Savannah Atlanta Rwy. Co. v. DeBusk, 68 Ga. App. 529, 23 S.E.2d 529 (1942). Thus, now, we have the conclusion that the stock law cannot change the degree of care imposed by the judiciary." Be that as it may, in Aycock v. Callaway, supra (headnote 1), this court held squarely: "Generally, the stock law, known as the no-fence law, does not change the degree of negligence from ordinary negligence to wilful and wanton negligence. The fact that the damage alleged is in a locality where the stock law is in operation may be considered along with all the other facts and circumstances of the case, where, as here the acts of negligence alleged are acts of active negligence rather than statical negligence, to be determined by the jury as to whether the railroad is liable."
Under an application of the foregoing rules of law to the facts of this case, the trial court did not err in overruling the general demurrer to the petition or the enumerated grounds of the motion for new trial.
3. There is no merit in special ground 1 of the motion for a new trial in which the defendant complains of the trial court's failure to charge: "The measure of damages for the killing of livestock is the fair market value of said livestock at the time of the killing." It appears that at another point in its charge the court stated that the jury "should determine the amount of damages done to the plaintiff's cows in dollars and cents," and that they would be authorized to find that amount for the plaintiff. As suggested by counsel for the plaintiff, and an examination of the record confirms this, the plaintiff offered the testimony of two lay witnesses and one expert witness, all of whom were familiar with the market value of the cows killed. Those witnesses testified that the market value of the cows was at least $8,300. The jury returned a verdict of $7,175. The defendant offered no testimony to rebut the plaintiff's evidence as to the value of the cows and did not cross-examine these witnesses as to value. The case was defended entirely on the question of liability. The "damage done" to the cows could only have meant the loss to the plaintiff of the fair market value of the cows. If the defendant had desired a more elaborate charge upon this point, it should have been requested.
4. There is no merit in the assignment of errors upon the charge contained in special ground 5. In this ground the defendant complains of various portions of the charge. The only assignment of error upon these portions of the charge with which we have not already dealt is the trial court's failure to define "reasonable care or reasonable diligence." In Atlantic Birmingham Railway Co. v. Smith, 2 Ga. App. 294 (2) ( 58 S.E. 542) this court held: "In the absence of a written request for the court to define to the jury the meaning of the words `ordinary and reasonable care and diligence', there was no error in the omission to do so. It is doubtful if any specific definition would enlighten the jury or make any clearer the plain meaning of these simple words."
5. As special ground 8 of the motion for a new trial was not argued in this court either orally or in the brief of counsel for the plaintiff in error and is not generally insisted upon, this ground will be treated as abandoned. Evergreen Memory Gardens, Inc. v. Blythe, 92 Ga. App. 413 ( 88 S.E.2d 528).
6. The evidence was in conflict upon every point at issue, but these conflicts were resolved in favor of the plaintiff by the jury. The verdict was within the range of the evidence and authorized by the evidence. The trial court, consequently, did not err in denying the motion for new trial.
Judgment affirmed. Gardner, P. J., and Townsend, J., concur.