Central Railroad v. Summerford

Bleckley, Chief Justice. 1. The code, in section 3033, declares that a railroad company shall be liable for any damage done to stock or other property by the running of the locomotives or cars, unless the company shall make it appear that their agents have exercised all ordinary and reasonable care and diligence, the presumption in all cases being against the company. This rule of diligence was not modified or altered by subsequent legislation known as the stock law. Central R. R. v. Hamilton, 71 Ga. 461. With or without the stock law, the degree of diligence required of railroad companies is one and the same; it is “ordi 630 nary and l-easonable.” What would amount to that degree of diligence in each particular case under all the circumstances, including the application or non-application of the stock law at the particular locality, and including also the scene of the occurrence, whether in an enclosed field or upon unenclosed lands outside, is a question for the jury. The jury can and should take into consideration all the pertinent and material facts, aud in the light of the whole determine whether the care and diligence observed in the particular instance came up to the degree of ordinary aud reasonable, or fell below it. The instructions requested and refused in this case sought to relieve the company, or. to authorize the jury to relieve it, from as high a degree of care at the place of this occurrence as might be due from it at some other place. This is not allowable; for one and the same degree of care is due alike at all times aud places; but what conduct will come up to that standard may not, and indeed would not, be alike at all places. To tell the jury that the degree of care and diligence might be varied, is a very different thing from instructing them that, while ordinary and reasonable care and diligence would be always required, the requirement might be met, if in their opiniou it could be done under all the circumstances, by using less vigilance or watchfulness at one place than at another, always however keeping such lookout as would be reasonably necessary at the time and place in question to avoid coming in contact with animals that might happen to be at large and stray upon the track of the railway. Of course it would be reasonable for the lookout to be less strict according to the less probability of such accidents, and more strict where the probability was greater. While this perhaps may have been the distinction intended by counsel in submitting the request to charge, yet as the language used was susceptible of 631 another construction, the court was justified in declining the request and committed no error in so doing. The principle of discrimination in adapting conduct to conditions, while adhering to a single standard of diligence, was recognized in Central R. R. v. Ryles, 84 Ga. 420. 2. It might have been more satisfactory to us if the verdict had been the other way; but the evidence warranted the finding and, the presiding judge being satisfied, we have neither the right nor the will to interfere. Judgment affirmed.