McCoy v. Southern Pacific Co.

De Haven, J. The complaint alleges that plaintiff’s sheep were lawfully grazing in a certain field through which the road of defendant runs, and that by reason of the failure of defendant to construct and maintain a good and sufficient fence along the line of its road at that point, the sheep strayed upon defendant’s road and were killed by the passing cars. This action is to recover damages for the loss of such sheep. The plaintiff recovered judgment in the superior court, and the defendant appeals.

The evidence upon the trial tended to show that the land from which the sheep strayed was at the time in the possession of Boyd Brothers, as lessees for a term of years, and that plaintiff’s sheep were being pastured there, under an agreement with them, by which the plaintiff bought the stubble and feed standing in the field, with the privilege of herding or keeping his sheep on the stubble until it should be “fed off” by the sheep. In substance, the contract was for pasturage, the plaintiff undertaking to herd and look out for his sheep while they were on the land. The defendant constructed a sufficient fence along that portion of its road passing through the field in question, but prior to the time plaintiff obtained the right to thus pasture his sheep in the field, the Boyd Brothers, for their own convenience in driving in and out of the field, made and left an opening in the fence by removing a panel therefrom, and the fence was in this condition when plaintiff’s sheep were put in the field, and the Boyd Brothers continued thereafter to drive through this open gap with their teams as they had done before, and it was through the breach thus made in the fence that plaintiff’s sheep strayed upon the track of defendant.

Upon the trial, it was claimed by plaintiff that the Boyd Brothers took the panel out with the consent of defendant, and that defendant agreed to replace the same with a gate; while upon the other hand, the defendant insists that it gave no such consent, and made no such agreement.

[5701]. Section 485 of the Civil Code provides: “ Railroad 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 fence, if their engine or cars shall kill or maim any cattle or other domestic animals upon their line of road which passes through or along the property of the owner thereof, they must pay to the owner of such cattle or other domestic animals a fair market price for the same, unless it occurred through the neglect or fault of the owner of the animals so killed or maimed.”