McCoy

The complaint alleges that plaintiff’s sheep were lawfully grazing in a certain field through which the road of defendant runs, and that by reason of the failure of defendant to construct and maintain a good and sufficient fence along the line of its road at that point, the sheep strayed upon defendant’s road and were killed by the passing cars. This action is to recover damages for the loss of such sheep. The plaintiff recovered judgment in the superior court, and the defendant appeals.

The evidence upon the trial tended to show that the land from which the sheep strayed was at the time in the possession of Boyd Brothers, as lessees for a term of years, and that plaintiff’s sheep were being pastured there, under an agreement with them, by which the plaintiff bought the stubble and feed standing in the field, with the privilege of herding or keeping his sheep on the stubble until it should be “fed off” by the sheep. In substance, the contract was for pasturage, the plaintiff undertaking to herd and look out for his sheep while they were on the land. The defendant constructed a sufficient fence along that portion of its road passing through the field in question, but prior to the…

I concur in the judgment of reversal, and in the opinion of Mr. Justice De *572 Haven,with this exception: I think that the sixth instruction asked by defendant should have been given. It told the jury, substantially, that plaintiff had no greater rights than the Boyds would have had if their sheep had escaped through the opening in the fence and been killed. Of course the jury should have been further instructed what, in the event supposed, the Boyds’ rights would have been; but the instruction, as far as it went, was, in my opinion, correct.

Whether or not the statute was intended for the protection of the public generally, is a question which does not arise in this case. If a passenger were suing for damages from an accident caused by animals on the track, then such question would be presented. “ Through or along the property of the owner thereof” certainly does not include a person who has a mere temporary license to have his stock eat stubble when his licensor maintains the opening. If so, then it would include the horses of a guest turned out for a day or two to graze. The Boyds were the owners of the property within the meaning of the statute. If the doctrine of the…

I concur in the judgment, and in the opinion of Justice De Haven.

The superior court did not err in refusing to give the instructions asked by the defendant in the form in which they were put, for they did not state clearly or accurately the proposition of law upon which the defense rests, but certainly it was error to give the third instruction requested by plaintiff, unqualified by any statement of the proposition that the plaintiff, if a mere licensee of Boyd Brothers, could not recover for his loss if they made and maintained the opening in the fence for their own convenience.

The evidence in the case very clearly shows that the *573 defendant had fully performed its duty by the erection of a sufficient fence, and that Boyd Brothers subsequently removed a panel for their own convenience. To counteract the effect of this proof, an attempt was made to show that defendant had agreed to close the gap by putting in a gate. But in my opinion, there was no evidence to justify a finding that the defendant ever made any such agreement. There was evidence that Daly, a section boss, promised to put in a gate, but no evidence that he had any authority to make such agreement in behalf of…