McCoy

This action is for damages for killing plaintiff’s sheep by the defendant’s locomotive and cars. Plaintiff was the owner of a band of about three thousand sheep, which he avers were lawfully grazing in a field adjoining defendant’s railway, near Rawson’s switch, in Tehama county; that, by reason of the failure of the defendant to make and maintain a good and sufficient fence, they, without his fault, strayed upon the track of the railway, and were run over and killed; also that defendant so negligently and carelessly ran and managed its engine and cars that they ran over and killed plaintiff’s sheep. The defense is a general denial and a charge of contributory negligence. It appears that Boyd Bros, were in possession of what was known as the “Healey Ranch,” as tenants of one Kraft. In the fall of 1889, they sold to plaintiff. the stubble feed on the ranch after the grain was removed, and let him into such possession as was necessary to enable him to pasture the fields. Plaintiff was to take charge of his sheep while there, Boyd Bros, assuming no responsibility with reference to them. Boyd Bros, continued to live upon the place, and contracted with plaintiff to board his herder.…

I dissent. The Boyd Bros, were clearly in possession and control of the land and the fences. If they opened the fence, they certainly could not have recovered if their sheep had gone through the opening and been killed. Plaintiff’s sheep were being pastured on the land subject to the general control of the land by the Boyds; and, if the sheep were injured by any misconduct of the Boyds, the latter were, perhaps, responsible to plaintiffs for such injury. But if the Boyds kept the fence open for their own convenience, neither they, nor anyone temporarily occupying part of the land for a special purpose under them, can complain of the defendant. This proposition is practically admitted in the prevailing opinion of the court, but it is said that this proposition was not presented in the instructions asked by appellant. I think it was clearly presented, particularly in the sixth instruction asked. I think that the phrase, “if the Boyd Bros, could not themselves have recovered damages to their stock under similar circumstances,” could not possibly have been understood by the jury in any other way than as meaning that if the sheep had belonged to the Boyd Bros., and had escaped onto the…