Wills

Pursuant to the verdict of a jury, judgment was entered in favor of the plaintiff for the sum of six hundred dollars damages -on account of the loss of certain horses of the plaintiff which were killed on the defendant’s railroad track. The defendant appeals from the judgment and from an order denying its motion for a new trial.

There is in the complaint an allegation of negligence by the defendant in running and managing its train whereby the horses were killed. The evidence shows that they were killed by a collision with one of defendant’s trains. But there is no evidence of carelessness or negligence in the running of the train, and the judgment cannot be sustained unless a cause of action has been established upon another theory of the case arising from the provisions of section 485 of the Civil Code. We refer to that section as it existed prior to the amendment of 1915. It is therein enacted that “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…