Central of Georgia Ry. Co. v. Boswell

GARDNER, J. The question of importance on this appeal is presented in the ruling of the court sustaining the demurrers of the plaintiff to the defend ant’s iplea of contributory negligence set out in the foregoing statement of the case. In Southern Ry. Co. v. Dickens, 153 Ala. 283, 45 South. 215, the defendant railway interposed, as a defense to a suit of similar character as that here considered, a plea of contributory negligence, in that the plaintiff had breached his contract in regard to maintaining a fence on each side of defendant’s roadbed where it passed through the defendant’s land, which said contract was in writing based on a valuable consideration; the plea alleging further that the plaintiff carelessly and negligently, and contrary to his duty under the contract, allowed the fence to become insecure and broken down, in consequence of which the animal which was killed got upon the right of way, and that such failure on the part of plaintiff proximately contributed to the plaintiff’s damage.’ In discussing the sufficiency of this plea, the court, after referring to those cases where it had -been held- that the fact that the owner of the stock unlawfully suffered them to run at large in what is commonly referred to as “stock law districts” was no defense to an action for the negligent killing of such animals, said: “The plea under consideration does not deny that defendant was negligent; and we can seo no difference in principle between holding that the unlawful act of failing _ to keep the fences up cannot be urged as constituting contributory negligence and' holding that the unlawful act of suffering animals to run at large does not constitute such negligence. The act of the plaizztiff in failing to maintain the fences may constitute a breach of the contract; and, although .the cow escaped from the plaintiff’s land on accouizt of the breach, it cannot be held to have been the moving proximate cause of the death of the animal, and the court did not err in sustaining the demurrer to pleas 2 azzd 3.” See, also, L. & N. v. Christian Moerlein Brew. Co., 150 Ala. 390, 43 South. 723; L. & N. R. R. Co. v. Kelsey, 89 Ala. 287, 7 South. 648; M. & O. R. R. Co. v. Christian Moerloin Brewing Co., 146 Ala. 404, 41 South. 17; Ensley Merc. Co. v. Otwell, 142 Ala. 575, 38 South. 839, 4 Ann. Cas. 512; St. L. & S. F. R. R. Co. v. Douglass, 152 Ala. 197, 44 South. 677; A. G. S. R. R. Co. v. McAlpine & Co., 71 Ala. 545; So. Ry. Co. v. Hoge, 141 Ala. 351, 37 South. 439. It is to be noted in the instant case that no unlawful act is charged to plaintiff, nor breach of any duty, nor indeed, when the facts set up izi the plea are considered, is any negligent cozzduet shown on the part of the plaintiff. Cleaz-ly none, however, which can be said to be shown to have been the moving proximate cause of the death of the animal. We are of the opinion that under the *59 principle of the above-cited cases the plea was insufficient and the demurrer properly sustained. When properly construed, it may be seriously questioned that the case of Guess v. So. Ry. Co., 30 S. C. 103, 9 S. E. 18, relied on by counsel for appellant, is in conflict with the conclusion here reached. Should it be construed, however, to the contrary, that authority must be held out of harmony with the foregoing cases, and therefore not to be followed by this court. It results that the judgment appealed from will be affirmed. Affirmed. ANDERSON, O. J., and McCLELIAN and SAYRE, JJ., concur.