McMahon v. Hetch-Hetchy & Yosemite Valleys Railway Co.

McLAUGHLIN, J.

This is an action to recover damages resulting from a fire started by sparks from a locomotive. The complaint alleges that the defendants negligently permitted dry grass, leaves, and other combustible material to remain on the track and right of way of a railroad owned and operated by them, and that by reason of the negligent and careless manner in which the defendants and their servants and employees ran and managed the locomotives and cars on said railroad sparks of fire escaped from a locomotive and ignited and set fire to such combustible material, which fire spread to adjoining lands, where the property of plaintiffs was situated, and burned and destroyed said property to their damage in the sum of $809. The defendant West Side Lumber Company denied that it at any time owned or had an interest in such railroad, or was engaged in operating the same. Both defendants united in denying the other allegation of the complaint. The cause was tried before a jury, and the verdict rendered reads as follows: “We, the jury, in the above-entitled action, find a verdict in favor of the plaintiffs in the sum of $300 damages. ’ ’ The judgment entered by the clerk, after the usual preliminary recitals, contains a copy of the verdict, and concludes by adjudging and decreeing that the plaintiffs do have and recover of and from the Hetch-Hetchy and Yosemite Valleys Bailway Company of California, one of the defendants in said action, the sum of $300, with costs. The defendants appeal from the judgment and from the order denying their motion for a new trial.

The verdict is strictly within the issues made by the pleadings; and, this being the case, the clerk had no authority to enter a judgment at variance with the verdict as recorded

.

Code Civ. Proc., sec. 664; 11 Ency. of Pl. & Pr., pp. 904,

[402]

905; 18 Ency. of Pl.

&

Pr., pp. 429 et seq., 448, 451;

Watson

v.

San Francisco R. R. Co.,

50 Cal. 524;

Patochi