Baker v. Southern California Railway Co.

VAN DYKE, J.

—This action was brought in the justice’s Court to recover the sum of one hundred and thirty dollars, the value of a cow and steer alleged to have been killed by a train on defendant’s road. An answer was filed in which it was alleged, among other things, that the determination of the action necessarily involved the question of title to, or possession of, real property, and the cause was accordingly certified to the superior court under the provisions of section 838 of the Code of Civil Procedure. On the appeal from the first trial, a motion was made to dismiss the appeal, on the ground that the court had no jurisdiction. This court held that the transfer of the cause to the superior court was proper, and that that court had

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jurisdiction thereafter to try the cause; and the motion to dismiss the appeal was denied. (See

Baker v. Southern Cal. Ry. Co.,

110 Cal. 455.)

On the merits of the appeal in that case, among the questions ■considered was the alleged error in overruling the demurrer to the complaint, as amended after the transfer to the superior ■court. And it was held that said complaint was uncertain as to whether the plaintiff’s cause of action was founded upon negligent acts of the defendant in the management of its train, or ■upon the failure of the defendant to fence its track or right of way.

(Baker v. Southern Cal. Ry. Co.,

114 Cal. 501.)

After the cause was remanded the complaint was again amended. In said last amended complaint it is alleged that the cattle were grazing “upon land occupied and controlled by plaintiffs adjoining said defendant’s railway, and the said cattle then and there, without the fault of the plaintiffs, or either of them, ■casually strayed upon the ground and track occupied by the defendant’s railway, in the county of San Diego, state of California. That defendant then and there, by its agents and servants, and not regarding its duty in that behalf, so carelessly and negligently managed its cars and locomotives that the same ran upon and against the said cattle and killed and destroyed the same, to the plaintiffs’ damage and injury in the sum of ■one hundred and thirty dollars. That at the point where said cattle were killed as aforesaid, defendant’s railway was not on the last-mentioned date, nor is the same now, fenced on either side thereof.” It is very evident that this complaint is subject to the same uncertainty as the one considered by this court on the former appeal. It cannot he ascertained therefrom whether the plaintiff relies upon the allegation of negligence in the management of the train, or upon the allegation of possession and control of the premises through which the railroad passes, and that the same was not fenced.