Imperial Valley Mercantile Co. v. Southern Pacific Co.

Plaintiff brought this action to recover damages caused by the killing of certain sheep belonging to it, alleged to have been caused by the negligence of defendant. The issues made up were submitted to a jury and a verdict in favor of plaintiff for the sum of $420 was returned, upon which judgment was entered. An appeal was taken from that judgment and from an order denying defendant’s motion for a new trial. It is the contention of defendant, first, that the evidence was insufficient to show any negligence on the part of defendant; and, second, that the evidence did show that plaintiff was negligent in the handling of the sheep, which negligence contributed to the cause of the killing of the animals.

A band of about two thousand one hundred sheep belonging to plaintiff were being driven along a public road in the county of Imperial on the eighth day of July, 1908. They were in charge of an employee of plaintiff. The road along which they were being driven crossed the railway track of defendant at what is known as Whiting’s Crossing. It was nearly dark at the time, and before driving the sheep across the railway tracks, the person driving them testified that he went to the track…