118 Ga. 463 | Ga. | 1903
But two questions are presented for. our determination in this case: (1) Did the evidence warrant a finding thát the railway company was liable in damages for the value of two cows killed by the running of one of its trains ? (2) Did the judge of the court below err in giving instructions to the jury respecting the legal duty devolving upon railway companies to observe proper precautions against injuring stock running at large in a militia district of this State wherein the “ fence law ” had been adopted by popular vote?
A perusal of the evidence appearing in the record before us can not justify any other conclusion than that the jury were warranted in finding that the company’s engineer might, had he maintained a diligent outlook, have seen the cattle in ample time to have avoided injury to them.
The company introduced in evidence “ a certified copy of the minutes of the court of ordinary of Eulton county, Georgia, giving the results of the election on the fence law in Peachtree and Buck-head districts, in the said county, showing the law to have gone into effect in 1883 and 1884.” The purpose of this evidence was to show that in the district wherein the cows were killed owners of stock were under a legal duty to keep their stock within inclosures, and not to allow the animals to roam at large. As the jury was about to retire to make up a verdict, one of the members thereof addressed the court, saying he “ understood that it was being contended in the case, in the argument of counsel for plaintiff, that the railroad company should have fenced in its right of way,” and the “jury would like to know whether there was any law in