Hynes v. San Francisco & North Pacific Railroad

Ross, J. John P. Hynes, a boy accustomed to work on his father’s farm, through which the defendant’s road is constructed, went on a certain afternoon in 1879 to his father’s barn, mounted a horse, and started in search of cows. He used no saddle, but [317]according to his own and other testimony in his behalf, he had on the horse a halter and bridle. The barn was not far from the railroad track, and in going for the cows it was necessary for him to cross the track. Between the barn and the track was an old fence, in which was a bend and two gates—one a small and the other a large one. He entered the space'next the railroad through the small gate, and, according to his own testimony, when inside the gate, heard the noise of the cars and train and saw them coming. “After I went through the little gate,” said the witness, “ I walked my horse down along the fence into the angle near the big gate, about seventy-five feet from the railroad track—a quick walk. Then he (the horse) got frightened and went to dash across the road, and was caught on the cow-catcher. I tried to hold him, but could not. He ran toward the little fence that goes toward the crossing, and jumped over it, and then on to the track—he was trying to cross the track ahead of the engine, and I fell on the cow-catcher in front and the horse was dragged along the track. I never rode him without a bridle. I thought I was safe in that corner. I was twenty-five feet from the big gate. I had worked the horse hauling hay and mowed with him in sight of the track — never ran before, or gave any trouble about the cars. We had him about two years. Did not know of the time the Sunday train commenced. Did not exactly know what hour the train would be down that day. I was hurt—had my left leg broken, and was sick about ten months before I could do anything.” The horse was killed. Two actions have grown out of the occurrence. One on the part of John P. Hynes, by his guardian, to recover of the railroad company damages for the personal injuries sustained by him, and the other by James Hynes, the father of John and the owner of the horse, to recover of the railroad company for the loss of the horse, and for the loss of the services of his son, and for medical attendance, etc.

By a statute of this State the railroad company was required to make and maintain a good and sufficient fence along its track, and this duty the company in question failed to perform. The statute reads: “Eailroad corporations must make and maintain a good and sufficient fence on either or both sides of their track and property. In case they do not make and maintain such