R Cas Central of Georgia Ry. Co. v. Ross Injuries to Stock Similar Injuries. a year since they killed a mule right below where they killed mine." This evidence was clearly inadmissible. It might have been perfectly true that mules and Evidence of cows had theretofore been killed by the running of trains on the same road at the place where the animal, for the killing of which damages are sought, was killed, and yet there might be no liability on the part of the company for this killing. The plaintiff was not entitled to recover at all, unless the killing was occasioned by the negligence of the employees of the company, and that question was not properly illustrated by evidence of the killing of other mules and cows. To sustain the admission of this evidence, we are cited to the case of Railway Co. v. Flannagan, 82 Ga. 579, 9 S. E. 471. In that case a witness was allowed to testify to the habitual high rate of speed with which a particular engine was previously run by the same engineer on the same street. In passing on the admissibility of this evidence, CHIEF JUSTICE BLECKLEY said that such evidence was of doubtful admissibility, but that, on "so doubtful a question, we think the court did not err in admitting the evidence." But the ruling in that case does not support the admissibility of the testimony which was received in this case. There the testimony was confined to the same engine, run by the same engineer, on the same street; and CHIEF JUSTICE BLECKLEY, in the Flannagan Case, above, cited a large number of cases pro and con on the admissibility of such evidence when it was confined to the identical same place, the identical same locomotive, and operated by the same person. The admissibility of the evidence must have been sustained alone to show the habitual negligence of the particular person who it was charged was guilty of the particular act. See, also, Railway Co. v. Kane, 92 Ga. 187, 18 S. E. 18. The proposition here, in effect, would be that all of the engines of this company were, by the different engineers, accustomed to kill mules and cows in this place. The ruling in the Flannagan Case was quoted as authority in the case of Railroad Co. v. Smith, 94 Ga. 107, 20 S. E. 763, for the Notes (NS) admissibility of the evidence as to the character of the plaintiff for being prudent or reckless in the conduct of his business, for the purpose of showing that he was habitually reckless; and this court, through MR. JUSTICE LUMPKIN, said: "CHIEF JUSTICE BLECKLEY said it was Sufficiency of of doubtful admissibility; and, besides, there is some difference between proving habitual acts of recklessness or negligence at particular times and places, and proving the general character of a particular person for recklessness, or the contrary." Inasmuch as the diligence of the company to prevent killing the animal varied in character according to the fact as to where the killing did occur (that is to say, whether it occurred on a public railroad crossing, or on the embankment, where the company's track was laid away from the crossing), and this material question was closely contested, the admissibility of this illegal testimony had a tendency to prejudice the case of the defendant; and for this reason the certiorari should have been sustained. Judgment reversed. All the justices concurring. Evidence. NOTES. Evidence-Collateral Facts.-Collateral facts or those unconnected with the facts in issue are, as a general rule inadmissible in evidence. Odiorne v. Winkley, 2 Gall. (U. S.) 51; Bunzel v. Maas, (Ala. 1897) 22 So. Rep. 568; Denver, etc., R. Co. v. Glasscott, 4 Colo. 270; Newsom v. Georgia R. Co., 62 Ga. 339; Nickerson v. Gould, 82 Me. 512; Cutter v. Howe, 122 Mass. 541; Peverly v. Boston, 136 Mass. 366, 49 Am. Rep. 37; Marshall v. Boston & A. R. Co., 31 Am. & Eng. R. Cas., 18, 145 Mass. 164; Blomgren v. Anderson, 48 Neb. 240; Amoskeag Mfg. Co. v. Head, 59 N. H. 332; Hill v. Syracuse, etc., R. Co., 63 N. Y. 101; Findlay Brewing Co. v. Bauer, 50 Ohio St. 560. Same Similar Acts of Negligence.- In an action for negligence, as a general rule, other similar disconnected acts of negligence by defendant are inadmissible in evidence. First Nat. Bank v. Ocean Nat. Bank, 60 N. Y. 279; Gahagan v. Boston, etc., R. Co., 1 Allen (Mass.) 187, 79 Am. Dec. 724; Baltimore Elevator Co. v. Neal, 65 Md. 438; Wentworth v. Smith, 44 N. H. 419; Louisville R. Co. v. Fox, 11 Bush (Ky.) 493. R Cas Sinard v. Southern Ry. Co SINARD ย. SOUTHERN RY. Co. (Supreme Court of Tennessee, Nov. 5, 1898.) Injuries to Stock-Duty to Fence Track*-Construction of Statute.-Under the act of 1891 of Tennessee, railroad companies maintaining unfenced tracks are made liable for the killing of stock only in cases where the stock is struck, killed or crippled by a moving engine, car or train. Same Same-Common Law. And where stock is killed by a fall from an embankment to the track, the company is not liable, although the track was unfenced, such statute not being applicable, and a railroad company being under no obligation to fence its track under the common law. APPEAL by plaintiff from Jefferson county circuit court. Affirmed. Park, King & Park, for appellant. Jourolman, Welcker & Hudson, for appellee. MCALISTER, J. Plaintiff owned a farm in Jefferson county, which was intersected by the Southern Railway. In the original construction of the road a cut was made for the tracks, which left a rather high embankment on either side. The plaintiff turned a mare into his field to graze, and the animal, being blind, walked over this embankment and was killed. This suit was to recover damages for the loss of the mare. In the circuit court verdict and judgment were in favor of the railroad. Plaintiff appealed, and assigns as error the refusal of the trial judge to charge that it was the duty of the railroad to have fenced this embankment. As already stated, this cut was made in the original construction of the road, and has been in use about 30 years. It is not insisted that the *See notes at end of case. 14 (NS) A & E R Cas-2 Notes (NS) animal was struck by the locomotive or train of the company, Injuries to but it is admitted that she was killed by the fall. Under the fence statute of 1891, railroad companies maintaining unfenced tracks are made liable for the killing of stock only in cases where the stock is struck, killed, or crippled by the locomotive or cars; that is to say, by a moving engine, car or train. There was no collision in this case, and hence the statute is inapplicable. Elliott, R. R. § 1207; Railroad Co. v. Crider, 91 Tenn. 489, 19 S. W. 618. Same-Same- It is insisted, however, that, independent of the act of 1891, it was the duty of the company to have fenced or barricaded this embankment. We do not concur with counsel in this contention. At common law no duty rested upon a railway company to fence its track, and it was not liable for animals killed or injured upon its track merely because it failed to erect fences. The overwhelming weight of authority is that the duty to fence exists only as a result of legislative enactment. 3 Elliott, R. R. SS 1180, 1181; Campbell v. Railroad Co., 50 Conn. 128; Clark v. Railway Co., 34 West Va. 200, 12 S. E. 505. Affirmed. NOTES. Failure to Fence-Injuries to Stock Not Caused by Collision with Train-Liability of Company.-See note, 5 Am. & Eng. R. Cas., N. S., 234. The company is not liable for an injury to cattle caused by failure to erect statutory fence, unless the animal was injured by a collision or contact with the engine or cars of the train. Croy v. Louisville, etc., R. Co., 97 Ind. 126, 9 Am. & Eng. R. Cas. 608; Burlington, etc., R. Co. v. Shoemaker, 18 Net. 369, 22 Am. & Eng. R. Cas. 369; Knight 7. N. Y., L. E. & W. R. Co., 99 N. Y. 25, 23 Am. & Eng. R. Cas. 188; Holder v. Chicago, etc., R. Co. (Tenn.), 11 Lea, 176, 13 Am. & Eng. R. Cas. 567; Moore . Burlington, etc., R. Co. (Iowa), 31 Am. & Eng. R. Cas. 572: Penna Co. v. Dunlap, 31 Am. & Eng. R. Cas. 512. A railroad company is not liable for an injury to an animal caused by the animal running on the track through fright at the train, and R Cas Southern Ry. Co. v. New being injured on a trestle and not by contact with the locomotive or cars. International, etc.. R. Co. v. Hughes (Tex.), 31 Am. & Eng. R. Cas. 569. Where a colt belonging to plaintiff ran from the highway upon land adjoining defendant's road, which did not belong to the plaintiff, and from thence through a gap, where a length in the fence on the side of the road was down, on to the track and upon a bridge designed for the passage of railroad trains only, with the spaces between the ties open, and the colt's legs were caught in the open spaces and broken, held, that the defendant was not liable. Knight v. N. Y., L. E. & W. R. Co., 99 N. Y. 25, 25 Am. & Eng. R. Cas. 188. Compare Liston v. Cent. Iowa R. Co., 70 Iowa, 714, 26 Am. & Eng. R. Cas. 593. In this case the court held that where the defendant company has neglected to fence, the fact that the train did not strike the horse and that the horse was injured by running in front of the train into a bridge, does not relieve the company of liability. SOUTHERN RY. Co. 2. NEW. (Supreme Court of Georgia, April 12, 1898.) Stock Killed beyond Crossing-Failure to Observe Statutory Precautions. Where a cow was killed upon a railroad track at a point beyond a public crossing, and it appeared from the testimony that the killing was unavoidable after the danger became apparent, the only fact relied on by the plaintiff as evidence of negligence being a failure to observe the statutory rule in approaching the crossing, a verdict for the plaintiff was contrary to the evidence. Railroad Co. v. Gravitt, 20 S. E. 550, 93 Ga. 370, 376. (Syllabus by the Court.) ERROR by defendant from Gordon county superior court. Reversed. Shumate & Maddox, for plaintiff in error. O. N. Starr, for defendant in error. PER CURIAM. Judgment reversed. COBB, J., absent for providential cause. *See Georgia Railroad & Banking Co. v. Clary, 11 Am. & Eng. R. Cas., N. S., abs. 856, and notes, 857 et seq. |