Davey v. Southern Pacific Co.

Citations

• 5 Cal. Unrep. 386
• 45 P. 170
• 1896 Cal. LEXIS 1134

Syllabus

<p>Railroads—Injuries to Licensee on Right of Way.—A complaint for injuries sustained by falling into an excavation between the tracks of defendant’s road alleged that the right of way was an easement in a public highway. On trial, plaintiff admitted that the fee of the right of way was in defendant. Without any amendment, and without objection from defendant for variance, the trial proceeded on the theory that plaintiff could recover as a licensee, and that the excavation was in a path in general use by the public, to the knowledge and acquiescence of the defendant. Held, reversible error to exclude evidence that the path had been used constantly by the public, without objection from defendant, on an objection that it was “immaterial, irrelevant, and incompetent,” since the objection was insufficient to raise the poiht of variance.</p>