Matoza v. Southern Pacific Co.

KERRIGAN, J.

The action is brought by plaintiff for the recovery of damages for the death of four cows, and certain expenses incident to their treatment in an effort to save them, alleged to have been caused by the negligence of the defendant in obstructing a private farm crossing traversing its railroad tracks so that the plaintiff was prevented from removing his herd of dairy cows from a field of green alfalfa, in consequence of which some of the herd consumed too much of the succulent pasture, four of them dying from the effects thereof.

Judgment went for plaintiff in the sum of $680, and the defendant appeals.

The main finding of the court and upon which this judgment is based is that the defendant negligently obstructed said private farm crossing, and maintained said obstruction after being apprised of the danger to plaintiff’s cows arising therefrom.

The appellant urges two points in support of this appeal, namely, that its right to the use of its railroad track was paramount to the right of the plaintiff to the use of his private farm crossing thereover, and that as the obstruction complained of was one necessarily incidental to the proper operation of its railroad it could not be charged with negligence in the matter, whatever the effect of such necessary obstruction might be upon the property of the plaintiff; and, second, that the plaintiff -was guilty of contributory negligence, which would prevent him from recovering damages.

The facts of the ease may be summarized as follows: The defendant operates a line of railroad between Oakland and San Jose. At Alvarado on said line it maintains a depot adjacent to which is a siding. At this point is a farm lying on both sides of said railroad, of which the plaintiff is the lessee, the plaintiff’s buildings and corrals being on one side of the track and on the other a field in which at the time of the occurrence of the events giving rise to the action

[639]

there was growing a crop of alfalfa. One afternoon at about 4 o’clock the plaintiff drove his herd of eighty-four cows from his corrals into the alfalfa field, using said farm crossing, his intention being to allow them to feed there not longer than twenty minutes, a longer period not being permissible, owing to the danger of the cows overfeeding and suffering from the effects thereof. Almost immediately after driving the herd into said field he noticed that a long freight train of the defendant was moved upon said siding so as to block his crossing. This freight train was known as No. 802. He thereupon requested the conductor of said train to part it at the point of the crossing, as it would in a few minutes be necessary for him to recross the track with his herd, and, according to the finding of the trial court, informed the conductor of the danger to his cows if their egress from the alfalfa field should be prevented. The conductor asked where the crossing was, the plaintiff gave him the information, and the conductor proceeded to the point apparently for the purpose of complying with the plaintiff’s request. In the meantime another freight train (No. 801) pulled up on the main line and stopped opposite said first train, it also blocking the crossing. Train 802 was on its way to San Jose and was waiting at this point for a passenger train bound for Oakland to pass it before it could proceed on its way. Train No. 801 was proceeding to Oakland, and was to be overtaken and passed at this point by said passenger train. The passenger train was due at 4:44. It was late, and did not arrive until 4:56, but the fact that it would not arrive on time was not known to the conductor of No. 802. The plaintiff made no request to the conductor of No. 801 to move the train or part it at the crossing, apparently thinking that it was sufficient that he had requested the employee in charge of No. 802 to open the crossing. Having made such request the plaintiff proceeded to assemble his herd of cows at the crossing gate; but the conductor of No. 802, being of the opinion that to part his train or otherwise open the crossing would result in delaying the passenger train (his testimony as to the time at which the plaintiff’s demand that the crossing be opened was made placing it much later than the testimony given by the plaintiff) took no steps to effect the opening, so that the plaintiff was compelled to wait at