Fontaine v. Southern Pac. R.R.

Citations

• 54 Cal. 645

Syllabus

<p>Pleading—Non-Performance—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.</p> <p>Railroad Companies.—The proviso in § SO of the Railroad Act of May 20th, 1861, simply provides that a railroad company shall not be compelled to perform the offer or agreement, (referred to in the preceding part of the section,) to fence on the sides of its road, where it runs through uninclosed lands, until the owner of the land has built fences abutting on the railroad. It does not exempt the company from the liability created by § 40 for the valuS of animals killed by its locomotives on unfenced portions of the road,</p> <p>to.—Lease—Landlord and Tenant.—Where a railroad company has leased its road and rolling stock to another company, it remains liable, under the sections of the law above referred to, for cattle killed by the trains of the lessee, on the unfenced portions of the lessor’s railroad.</p>