Macon & Western Railroad v. Lester

30 Ga. 911

• Court: Supreme Court of Georgia
• Decided: June 15, 1860
• Status: Published

Opinion

By the Court

Stephens, J.,

delivering the opinion'.

1. If the engineer’s version of this case be the true one, it was an unavoidable accident; but if the version of the other three witness is to be taken, it was a case of gross negligence, not to say of wanton outrage. The sum of their testimony is, that the horse ran before the engine, gradually increasing his speed, about 400 yards before he was struck, in a bright moonlight night, and in the full blaze of the head-light, and yet that there was no slackening in the speed of the engine. These facts are suggestive of a race after the horse, and much more than suggestive of an utter indifference as to his fate. We cannot set aside a verdict which is so well supported by three witnesses who do not appear to have been otherwise than impartial, because it is contradicted by one witness whose connection with the affair laid him open to a fair suspicion of bias.

2. But it was said, whatever may have been the negligence of the engineer, the owner of the horse was in pari delietu, in allowing his horse to go at large -, that he, through his horse, was a trespasser on the road. Such law as this would require a revolution in our people’s habits of thought and action. A man could not walk across his neighbor’s unenclosed land, nor allow his horse or his hog, or his cow, to range in the woods nor to graze on the old fields, or the “ wire grass,” without subjecting himself to damages for a trespass. Our whole people, with their present habits, would be converted into a set of trespassers. We do not think that such is the law. Where a whole country abounds in loose stock, he who wishes to protect his land from their visits, must enclose it; and where, as in our State, a form of fence is prescribed, he must enclose it with a lawful fence. Every man consents to what is universal in the country where he is, until he expresses his dissent in a form to give notice of it to the public, and where there is a mode prescribed he must pursue that mode.

Judgment affirmed.