McCoy v. Southern Pacific Co.

TEMPLE, C. This action is for damages for killing plaintiff’s sheep by the defendant’s locomotive and cars. Plaintiff was the owner of a band of about three thousand sheep, which he avers were lawfully grazing in a field adjoining defendant’s railway, near Rawson’s switch, in Tehama county; that, by reason of the failure of the defendant to make and maintain a good and sufficient fence, they, without his fault, strayed upon the track of the railway, and were run over and killed; also that defendant so negligently and carelessly ran and managed its engine and cars that they ran over and killed plaintiff’s sheep. The defense is a general denial and a charge of contributory negligence. It appears that Boyd Bros, were in possession of what was known as the “Healey Ranch,” as tenants of one Kraft. In the fall of 1889, they sold to plaintiff. the stubble feed on the ranch after the grain was removed, and let him into such possession as was necessary to enable him to pasture the fields. Plaintiff was to take charge of his sheep while there, Boyd Bros, assuming no responsibility with reference to them. Boyd Bros, continued to live upon the place, and contracted with plaintiff to board his herder. Plaintiff had possession of no buildings, was not to reside upon the place, but kept his herder there to look after the sheep. Under this contract he drove his sheep on the place on or about the sixteenth day of September, and they were left there in charge of a herder. On the night of the 7th of October the herder ‘ ‘ camped the sheep ’ ’ about one mile and a quarter from the railroad. After “rounding them up” at this place, he remained until some of them had laid down, apparently for the night, and then went home. The night was rainy, and the sheep strayed from this place to an opening in the fence at Rawson’s switch, and out upon the track, and were run over, and some of them killed, by a train running toward Red Bluff, at about half-past 7 in the evening. The same train returned in the morning, and again ran over and killed some more of them at about the same place. Rawson’s switch, where the sheep entered, was a flag station, and the land inclosed by the defendant at that point is wider than at other places. On the [400]side next this field the fence is some two hundred and seventy feet farther from the track. This extra width is sixty panels measured by the fence, or about one thousand feet in length along the railway. Near the center of this the Eawson and Healey ranches join, and the opening is near the division fence. The defendant had quite recently constructed a new fence along the right of way and this extra width or reserve, which was evidently intended for use in connection with the station.' The opening had been made by Boyd' Bros, with the consent of the section boss or 'master. His duty in reference to such matters appears from the evidence of Davis, the division foreman, to be, if he finds any slight repairs required in the fence which he has the means to make, then to make such repairs, but defects which he has not the lumber or other means to repair it is his duty to report to the division foreman. Boyd Bros, desired this opening for their private accommodation. There was already a gate through which they could have had access to the station, but it was less convenient. They took down a panel sixteen feet long, in March preceding the accident, and it had never been replaced, or the fence made good by a gate or any other device. The section-master, when he gave consent to make the opening, promised to have a gate placed there, but it had never been done. The old fence, which had shortly before been replaced by the new one, had an opening at the same place, in which there had never been a gate. In short, there had always been an open road there leading from Boyd’s house to the station. The field was a large one; how large is not shown. But it extended from the Sacramento river on the south to the railway on the north, and it is stated that the house was about one mile from the railway, and a mile and a half from the river; also that all the bottom land was in grain, and four hundred acres of the upland. The plaintiff and his herder both testify that they had not seen this opening before the accident, and did not know of its existence. The plaintiff had seen two gates opening into the right of way, and had given special directions for extra care in keeping them closed. The sheep had been upon the place about twenty days before the accident, and during that time Boyd Bros, had done some hauling through this opening, as they had done before.