71 Ga. 461 | Ga. | 1883
The principal question presented by this case is, what effect, if any, the provisions of the law, in counties where it is of force, requiring stock to be kept up, has upon the liability of railroads for killing the same in such localities, by the running of their trains ? Does this law, which is embodied in §§1449, 1450, 1451, 1452 of the Code, modify or alter the rule of diligence to be observed in the running Of trains in such cases by §§3033 and 3034 of the Code—. viz : That the company shall be liable for damage done to stock by its locomotives or cars, or by any person in its employment, unless it shall make it appear that its agents have exercised “all ordinary and reasonable care and diligence,” or unless it appear that the injury to the property was done by the consent of the owner, or was caused by his negligence, or unless both parties were at fault, in which case, the owner may, nevertheless, recover, but the damages are to be diminished by the jury in proportion to the amount of default attributable to him ?
The defendant, by its counsel, requested the court to charge the jury,
(1.) That it was against the law of the state for stock
(2.) That if the cow was permitted to run at large by the plaintiff, and was killed by the defendant’s cars in the county of Spalding, since the adoption of the stock law, then the plaintiff would be guilty of negligence, and could not recover.
(3.) If the plaintiff permitted her-cow to run at large, and she was upon the right of way of defendant in the county of Spalding when killed, then there could be no recovery, unless the evidence showed that the engineer recklessly and wilfully ran the engine on the cow.
But, be this as it may, it is urged that the legislation in relation to the confinement of stock, so as to prevent its running on the premises of others, is in pari materia with the sections of the Code that lay down the rule of diligence to be observed by railroads in the running of their trains, and defines their liabilities in cases where stock is killed, and should be so construed as to make these acts consist with each other.
We are of opinion that the provisions in question are not in pari materia, but deal with distinct subjects. The provisions of the Code §§3033 and 3034, lay down what care and diligence the roads must observe in the running of their trains, and what will modify or relieve them altogether from liability, in the event that stock is killed by them.
The stock law contains no similar provision. It does not contemplate the killing of stock wandering upon the land of another; on the contrary, it provides for the taking up and impounding such stock, the care to be bestowed upon it while in the pound, etc., how the expense of impounding is to be paid, and gives a remedy for the damage done by the stock while going at large. Code, §§1451, 1452, 1454. The illegal impounding or abuse of stock is made penal by the same act. Code §1453.
That the existence of the stock law in any locality is a fact which the jury may consider in ascertaining the amount of care and diligence exercised by each of the
Judgment affirmed.