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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 night 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 Pae. 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.
Section 41 of the railroad act of 1861 (Stats. 1861, p. 623) is the basis of the section.
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.
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. 8. & 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.
This and the following two sections are based on sections 49, 50, and 51 of the railroad act of 1861, page 625.
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.
Removal of Passenger from Car.-If a conductor resolves to exercise his right to remove a passenger from his car, under the conditions 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 do so and injury results the company is liable. (Kline v. S. P. R. R., 37 Cal. 400. Note citations: 41 Am. Dec. 477; 82 Am. Dec. 294; 2 Am. St. Rep. 546; 7 Am. St. Rep. 604; 49 Am. St. Rep. 418.)
A passenger who is forcefully expelled, and receives injuries, is not required to exercise the highest degree of care and caution to avoid the consequences of such injury. It is enough that he exereised reasonable care. This section imposes a positive duty on the conductors and managers of railroad trains, but not on passengers. (Bland v. S. P. R. R., 65 Cal. 626, 4 Pac. 672.)
Where a passenger has once paid his fare he cannot be ejected for refusing to pay a second time, and it will be no defense to an action against the company for a wrongful expulsion that its conductor was honestly mistaken. (Gorman v. So. Pac. Co., 97 Cal. 6, 33 Am. St. Rep. 157, 31 Pac. 1112.)
OFFICERS TO WEAR BADGE.
Sec. 488, C. C. Every conductor, baggage-master, engineer, brakeman, or other employee of any railroad corporation, employed on a passenger train or at stations for passengers, must wear upon his hat or cap, or in some conspicuous place on the breast of his coat, a badge, indicating his office or station, and the initial letters of the name of the corporation by which he is employed. No collector or conductor, without such badge, is authorized to demand or to receive from any passenger any fare, toll, or ticket, or exercise any of the powers of his office or station; and no other officer or employee, without such badge, has any authority to meddle or interfere with any passenger or property. En. March 21, 1872.
See sec. 487, C. C., supra.
Cox v. Los Angeles Terminal Ry., 109 Cal. 104, 41 Pac. 794.
Construction of Section.-The section is not intended to limit the power of the corporation, but is for the protection of passengers, and a passenger does not become entitled to free transportation by reason of the omission of the conductor to put on the badge, and where the passenger recognizes the conductor as such, but refuses to pay his fare without such objection, if excluded from the car for refusal to pay fare, he is deprived of no right. (Cox v. Los Angeles Terminal Ry., 109 Cal. 100, 41 Pac. 794.)
This section denies to other officers or employees than the conductor the authority to meddle or interfere with passengers, without 1 badge. (Cox v. Los Angeles Terminal Ry., 190 Cal. 100, 41 Pac. 794.)
RATES OF CHARGES.
Sec. 489, C. C. All railroad corporations must fix and publish their rates of charges for freightage and fares from one depot to another, on their various lines of road in this state, graduated as follows:
1. One rate of charges per mile for a distance of one hundred miles, or over;
2. One rate for a distance of seventy-five and less than one hundred miles, charging not exceeding ten per cent per mile more than the first rate;
3. One rate for a distance of fifty and less than seventy-five miles, charging not exceeding fifteen per cent per mile more than the first rate;
4. One rate for a distance of twenty-five and less than fifty miles, charging not exceeding twenty per cent per mile more than the first rate;
5. One rate for a distance not exceeding twenty-five miles, charging not exceeding twenty-five per cent per mile more than the first rate.
But in no case, nor in any class of charges hereinbefore named, shall any railroad corporation charge or receive more than ten cents per mile for each passenger, nor fifteen cents per mile for each ton of freight transported on its road. For every transgression of these limitations the corporation is liable, to the party suffering thereby, treble the entire amount of fare or freightage so charged to such party. In no case is the corporation required to receive less than twenty-five cents for any one lot of freight for any distance. En. March 21, 1872.
Asking or receiving illegal fare a misdemeanor: Pen. C., sec. 525. Rates of charges on street railroads: Post, sec. 501, C. C.
Power of railroad corporations to charge tolls or compensation: Sec. 465, subd. 8, C. C.
See sec. 478, C. C., supra.