Jahant v. Central Pacific Railroad

Foote, C. This is an action for the recovery of damages against the defendant, a railroad company, for the killing of two horses by its locomotive and cars. The cause was tried by a jury, who returned a verdict in favor of the plaintiff, upon which a judgment was duly rendered. From that, and an order denying a new trial, the defendant has appealed.

The cause of action, as stated in the complaint, is as follows:—

“ That on or about the twenty-sixth day of September, 1884, the plaintiff was the owner and possessed of certain live-stock, to wit, two horses, of the value of $350, and which horses casually, and without the fault of said plaintiff, strayed in and upon the track and ground occupied by the railroad of the said defendant in Liberty township, county of San Joaquin, state of California.

[10]“ That the said defendant, by its agents and servants, not regarding its duty in that respect, so carelessly and negligently ran and managed its said locomotives and cars that the same ran against and over the said horses of the said plaintiff, and killed and destroyed the same, to the plaintiff’s damage $350.”

These allegations were denied by the answer.

The court, against the objection of the defendant, allowed evidence to be introduced that a certain fence alongside its track was not kept in repair, and that the horses of the plaintiff came through a gate in that fence, which had been left open, out upon the track, and were there killed by the locomotive and cars.

It was found by the jury, upon special issues, that the horses did come through that gate, and upon the track, and were there so killed; that the horses, when first seen by the engineer, were on the track; that at that time the train was running at the rate of twenty-five miles an hour; that when the train struck or hit and killed the horses, it was running twenty miles an hour; that the engineer, as soon as he saw the horses, used all possible means at his command to stop the train.

As it seems to us, under the pleadings, evidence of the carelessness of the defendant should have been confined to such as referred to its careless and negligent running and management of its locomotive and cars, by means of which only was it alleged in the complaint that the horses of the plaintiff were run against and over, killed and destroyed.