McCoy v. California Pacific Railroad

Appeal from the District Court of the Seventh District, County of Solano.

’Action for damages brought by plaintiff, to recover the value of certain horses and mules alleged to have been killed by the cars of the defendant, while passing along their unfenced railroad track running through a field occupied by plaintiff.

Plaintiff proved ownership of the stock, and their value to be three hundred and ninety dollars; that they were killed by defendant’s cars, on the railroad track in plaintiff’s field, and that said railroad was unfenced.

Defendant moved for a nonsuit, and the Court denied the motion, to which ruling the defendant excepted.

The cause was tried by a jury, and a verdict returned for the plaintiff, in the sum of three hundred and ninety dollars, and judgment entered accordingly.

Defendant moved for a new trial. The Court denied the motion, and defendant appealed from the judgment, and from the order denying the motion for a new trial.

To say that because the plaintiff had a right, as between himself and the owners of the adjacent land, to occupy it with his cattle, does not in any degree modify his obligation to exercise ordinary care in the mode and manner of its use. And to suffer stock to run at large in the night time, in the Yicinity of an unenclosed railroad, is, we conceive, an act of carelessness on the part of the owner, by reason of which the law will charge him with negligence.

Concede that plaintiff was in the ordinary exercise of his legal rights, yet in such exercise he exposes his property to great danger, — he took no precaution, but on the contrary threw open his fences, and so far as appears, paid no attention to the stock by day or by night. (See Cook v. the Champlain Transportation Co., 1 Denio. 91.)

It has been repeatedly adjudged that a person suffering cattle to stray on the highway in the vicinity of an enclosed railroad, is guilty of negligence. (See Mauger v. Tona-wanda B. B. Co., 4 Comstock, 394; March v. N. Y. & Erie Bailroad Company, 14 Barb. 364; Talmadge v. Bensselaerand Saratoga Bailroad, 13 Barb. 493; Eames v. Salem and Lowell Bailroad Co., 98 Mass. 560; Enright v. San Jose Bailroad Co., 33 Cal. 140; and Needham v. same, not reported.)

The case presented in the pleadings only charged negligence in running the locomotive, and not in constructing or maintaining the road.

Our statute limits the right of recovery to cases where the owner of the cattle is not negligent or at fault. (See also Hilliard-on Torts, vol. 1 P. 633; Kennard v. Burton. 25 Main 39; Waldron v. P. S. & B. Bailroad Co. 35 Me. 422.).

The plaintiff was bound to exercise his rights on the land, whatever they might be, with due regard to the rights of others. (See Marsh v. N. Y. & E. Bailroad, 14 Barb. 364.)