Loveland v. Gardner

Citations

• 79 Cal. 317
• 4 L.R.A. 395
• 21 P. 766
• 1889 Cal. LEXIS 727

Syllabus

<p>Negligence — Barb-wire Fence — Injury to Animals. — Though the owner of land is not liable, from the mere act of constructing a barb-wire fence upon his own land along the line of a public highway, for damages sustained by the animals of others, yet he is bound to exercise reasonable care to see that the fence does not become a trap for passing animals, of the natural propensities of which he is bound to take notice; and if he constructs or maintains the fence in a negligent manner, to the injury of the domestic animals of others, he is liable therefor, and cannot defend against liability for such negligence on the ground that the fence was constructed entirely upon his own land, nor on the ground that it was used for a lawful purpose.</p> <p>Id, — Recovery of Damages by One Joint Owner. •—One joint owner of animals injured by means of a barb-wire fence negligently constructed by the defendant along the public highway can only recover for his share of the damages sustained.</p> <p>Province of Jury — Instructions.—The jury are bound by the instructions of the court, whether correct or not.</p> <p>Appeal — Waiver of Damages as Condition of Refusing New Trial— Costs of Appeal. — When the damages awarded to a plaintiff are more than he is entitled to recover, but it appears from the record on appeal that he is entitled to recover a less sum, the appellate court will direct that the court below shall enter an order requiring respondent to waive the difference as a condition of allowing the judgment to stand and refusing a new trial, otherwise it shall grant a new trial; and that in case the waiver is filed, the parties shall share the costs of appeal.</p>