Fontaine

The plaintiff brought this action to recover the value of some cattle, which he alleges were run over by locomotives and cars on the track of the defendant’s railroad, by reason of the failure of the defendent to make and maintain a good and sufficient fence on either side or both sides of its said railroad track and property, as required by law.

The complaint was demurred to, on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled, and it is urged on behalf of appellant that the Court erred in overruling it, because “ it was not the duty of the defendant to build fences along the line of its road until the plaintiff or his lessor, Beale, had constructed fences abutting on its road. (Statutes continued in force, p. 169, § 30, subd. 2.) The complaint fails to allege that such abutting fences had been constructed, and is, therefore, insufficient. Where the non-performance of a duty imposed by statute is relied upon as the gravamen of the action, the conditions, in view of which the duty is to be performed, must be averred.”

The rule, which is here invoked by the learned counsel, is a familiar one, and if the statute which…