McCoy v. California Pacific Railroad

40 Cal. 532

Opinion

Wallace, J.,

delivered tbe opinion of tbe Court, Bhodes, C. J., and Cbookett, J., concurring :

—The instructions given were permitted to pass without objection below, and therefore will not be loobed into here.

The'motion for a nonsuit was correctly denied. Tbe line of tbe road was not fenced where it passed through the field occupied by the plaintiff ; the live stock of the latter running in this field strayed on to the road and were killed by the train ; these ’facts unexplained made a prima facie case of negligence against the defendant.

Nor was the plaintiff guilty of contributory negligence from the fact that he knew that the > road was not fenced when he turned the stock into the field.

The neglect of the defendant to build the fence certainly did not operate to dispossess the plaintiff of his entire field, or, what is the same thing, preyent him from making lawful use of it. Besides, he probably knew that so long as the defendant chose to continue running its cars upon this open track, it undertook at its peril that no harm should come to the stock for the want of a proper fence.

Judgment affirmed.

Mr. Justice Temple, being disqualified, did not participate m the decision of this case.