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CORPORATIONS TO POST PRINTED REGULATIONS, AND NOT

RESPONSIBLE FOR DAMAGES IN VIOLATION OF RULES. Sec. 484, C. C. Every railroad corporation must have printed and conspicuously posted on the inside of its passenger cars its rules and regulations regarding fare and conduct of its passengers; and in case any passenger is injured on or from the platform of a car, or on any baggage, wood, gravel, or freight car, in violation of such printed regulations, or in violation of positive verbal instructions or injunctions given to such passenger in person by any officer of the train, the corporation is not responsible for damages for such injuries, unless the corporation failed to comply with the provisions of the preceding section. En. March 21, 1872.

Rules and regulations by carriers of passengers, generally: See sec. 2186, C. C.

Section Cited.

Wright v. Cal, Cent. Ry. Co., 78 Cal. 364, 20 Pac. 740; Mitchell v. So. Pac. R. R. Co., 87 Cal. 873, 25 Pac. 245.

Annotation,

Chair Car.” – Where a railroad company imposed an extra charge for the use of the "chair car,” which charge and regulation for the use of the car were posted, and the attention of a passenger called thereto, no damages can be recovered for ejection from the car when the passenger refused to pay the extra charge. Such a regulation is valid. (Wright v. Cent. Ry. Co., 78 Cal. 364, 20 Pae. 740.)

FENCES-TO PAY DAMAGES-NOT LIABLE IN CERTAIN

CASES-CORPORATION MAY RECOVER DAMAGES, WHEN. Sec. 485, C. C. Railroad corporations must make and maintain a good and sufficient fence on either or both sides of their track and property. In case they do not make and maintain such fence, if their engine or cars shall kill or maim any cattle or other domestic animals upon their line of road which passes through or along the property of the owner thereof, they must pay to the owner of such cattle or other domestic animals a fair market price for the same, unless it occurred through the neglect or fault of the owner of the animal so killed or maimed. Railroad corporations paying to the owner of the land through or along which their road is located an agreed price for making and maintaining such fence, or paying the cost of such fence, with the award of damages allowed for the right of way for such railroad, are relieved and exonerated from all claims for damages arising out of the killing or maiming any animals of persons who thus fail to construct and maintain such fence; and the owners of such animals are responsible for

any

damages or loss which may accrue to such corporation from such animals being upon their railroad track, resulting from the nonconstruction of such fence, unless it is shown that such loss or damage occurred through the negligence or fault of the corporation, its officers, agents, or employees. En. March 21, 1872,

Cost of fencing as element of damages in condemnation: Sec. 1248, C. C. P.

Legislative History.

Section 40 of the railroad act of 1861 (Stats. 1861, p. 607), is the basis of this section.

Section Cited.

Butte County v. Boydston, 64 Cal. 113, 29 Pac. 511; Hynes v. E. F. & N. P. R. R., 65 Cal. 318, 4 Pac. 28; So. Pac. Co. v. Burr, 86 Cal. 248, 24 Pac. 1032; McCoy v. Southern Pac. Co., 94 Cal. 570, 29 Pac. 1110; Los Angeles P. & G. Ry. Co. v. Rumpp, 104 Cal. 28, 37 Pac. 859; Baker v. So. Cal. Ry. Co., 110 Cal. 456, 42 Pac. 975; Baker v. So. Cal. Ry. Co., 114 Cal. 508, 46 Pac, 604; Baker 5. So. Cal. Ry. Co., 126 Cal. 518, 58 Pac. 1055; Boyd v. So. Cal. Ry. Co., 126 Cal. 573, 58 Pac. 1046.

Annotation.

In the Absence of Statute.-Prior to the enactment of the act of 1861, and its re-enactment in this section of the code, railroad companies were not required to fence their tracks. (Richmond v. S. V. R. R. Co., 18 Cal. 351.)

Sufficient Fence.—Held, under act of 1861, requiring railroad companies to maintain a sufficient fence on both sides of their property, without prescribing what a sufficient fence shall be, must be considered as referring to and adopting he general law fixing the standard of lawful fences. The provisions of such a law are designed for the protection of the owner, and may be waived by him. (Enright v, S. F. & S. J. R. R., 33 Cal. 230. To same effect: Meade v. Watson, 67 Cal. 594, 8 Pac. 311.)

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Under this section a railroad company may inclose its entire right of way with a fence. (So. Pac. Co. v. Burr, 86 Cal. 284, 24 Pac. 1032.)

Purpose of Section. It is obvious that the purpose of the statute is to prevent collisions with cattle and other domestic animals, and that it has no application in ordinary cases where an individual suffers any injury. But a railroad would be liable for injuries to one who might be hurt by reason of its failure to comply with the law. (Hynes v. S. F. & N. P. R. R., 65 Cal. 318, 4 Pac. 28.)

Special Assessment in Condemnation.- When a special assessment was levied as provided in section 1248, subdivision 4, of the Code of Civil Procedure, as such subdivision existed prior to the amendment of 1889, to meet the cost of a sufficient fence along the line of railroad being condemned, and payment of the assessment was made to the land owner, who fails to build and maintain such fences, the law made him liable to the company for any damages or loss arising out of the killing of his cattle trespassing upon the road, unless it be proved that the loss was wholly due to the negligence of the company. (Butte County v. Boydston, 64 Cal. 113, 29 Pac. 511. To same effect: Los Angeles etc. Ry. v. Rumpp, 104 Cal. 28, 37 Pac. 859.)

Liability for Damages.- Where an adjoining owner so changes the fence erected by the railroad company to his own convenience, he cannot be heard to complain when his stock stray through the fence so changed, and a lessee of the land has no greater rights. (McCoy v. So. Pac. Co., 94 Cal. 570, 29 Pac. 1110.)

The liability imposed by the section runs in favor of the owner of the land, and the question of ownership of the land is a material issue in the enforcement of the liability. (Baker v. So. Cal. Ry. Co., 110 Cal. 455, 42 Pac. 975. To same effect: Baker v. So. Cal. Ry. Co., 114 Cal. 501, 46 Pac. 604; Baker v. So. Cal. Ry. Co., 126 Cal. 516, 58 Pac. 1055; Boyd v. So. Cal. Ry. Co., 126 Cal. 572, 58 Pac. 1046.)

While this section provides the railroad may be relieved from responsibility where it pays to the owner of the land traversed an agreed price for erecting and maintaining the fence, such defenso must be pleaded by the railroad. (Baker v. So. Cal. Ry. Co., 114 Cal 508, 46 Pac. 604. To same effect: Baker v. So. Cal. Ry. Co., 126 Cal. 518, 58 Pac. 1055.)

And a railroad failing to comply with this provision is liable therefor, notwithstanding its lease of its road to another railroad company which is using and operating the same. (Fontaine v. S. P. R. R., 54 Cal. 652.)

REGULATIONS OF TRAINS-PENALTY.

Sec. 486, C. C. A bell, of at least twenty pounds' weight, must be placed on each locomotive engine, and be rung at a distance of at least eighty rods from the place where the railroad crosses any street, road, or highway, and be kept ringing until it has crossed such street, road, or highway; or a steam-whistle must be attached, and be sounded, except in cities, at the like distance, and be kept sounding at intervals until it has crossed the same, under a penalty of one hundred dollars for every neglect, to be paid by the corporation operating the railroad, which may be recovered in an action prosecuted by the district attorney of the proper county, for the use of the state. The corporation is also liable for all damages sustained by any person, and caused by its locomotives, train, or cars, when the provisions of this section are not complied with. En. March 21, 1872.

Omitting to ring the bell a misdemeanor: Pen. Code, sec. 390.

Legislative History.

Section 41 of the railroad act of 1861 (Stats. 1861, p. 623) is the basis of the section.

Section Cited.

Meeks v. So. Pac. R. R. Co., 52 Cal. 604; Strong v. S. & P. R. R. Co., 61 Cal. 328; Orcutt v. Pac. Coast Ry. Co., 85 Cal. 296, 24 Pac. 661; Hager v. Southern Pac. Co., 98 Cal. 311, 33 Pac. 119; Green v. Southern Pac. Co., 122 Cal. 567, 55 Pac. 577; Green v. Southern Pac. Co., 132 Cal. 256, 64 Pac. 255.

Annotation,

Purpose of the Section. It is designed to compel railroad companies, under the pains and penalties therein prescribed, to exact vigilance and diligence of those to whom they intrust the running cf engines, trains, or cars across such places of danger to the public as streets and highways. (Orcutt v. Pac. Coast Ry., 85 Cal. 297, 24 Pac. 661.)

Contributory Negligence.-The liability cast upon the railroad company by this section does not abrogate the doctrine of contributory negligence, or operate to give a right of action where the nego ligence of the plaintiff materially and proximately contributed to the injury, even if the bell were not rung or the whistle blown. (Meeks v. So. Pac. R. R., 52 Cal. 602. To same effect: Orcutt v. Pac. Coast etc. Co., 85 Cal. 298, 24 Pac. 661; Hager v. So. Pac. Co., 98 Cal. 311, 33 Pac. 119; Green v. So. Pac. Co., 132 Cal. 254, 64 Pac. 255; Herbert v. So. Pac. Co., 121 Cal. 227, 53 Pac. 651. Note citation: 55 Am. Dec. 175.)

A plaintiff has a right to rely, however, upon the assumption that the statute will be complied with, and a signal given at a crossing. Ir injury occur as a result of reliance upon the performance by those on the locomotive of every act imposed by law, there is no contributory negligence and defendant is liable, if it fails to signal. (Strong v. S. & P. R. R., 61 Cal. 328.)

This section is for the benefit of those who use a crossing, and not for the benefit of trespassers at other points. Such trespassers cannot complain of the omission to comply with the statute, even though they would have heard the signal and been warned thereby. (Toomey v. So. Pac. R. R., 86 Cal. 374, 24 Pac. 1074. To same effect: Esrey v. So. Pac. Co., 88 Cal. 406, 26 Pac. 211.)

Construction of Section. This section does not require a continuous ringing of the bell or blowing of the whistle at crossings, and an instruction to that effect is erroneous. (Green v. So. Pac. Co., 122 Cal. 563, 55 Pac. 577.)

I'ASSENGER REFUSING TO PAY FARE.

Sec. 487, C. C. If any passenger refuses to pay his fare, or to exhibit or surrender his ticket, when reasonably requested so to do, the conductor and employees of the corporation may put him and his baggage out of the cars, using no unnecessary force, at any usual stopping-place, or near any dwelling-house, on stopping the train. En. March 21, 1872.

Refusing to pay fare: See, generally, sec. 2187 et seq., C. C.

Legislative History.

This and the following two sections are based on sections 49, 50, and 51 of the railroad act of 1861, page 625.

Section Cited.

Bland v. Southern Pac. R. R. Co., 65 Cal. 628, 4 Pac. 672; Gorman v. So. Pac. Co., 97 Cal. 5, 33 Am. St. Rep. 157, 31 Pac. 1112.

Annotation,

Removal of Passenger from Car.-If a conductor resolves to exercise his right to remove a passenger from his car, under the conilitions named in the statute, he must do so prudently and in such a manner as not to endanger his personal safety. If he does not

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