judgment, is a party aggrieved and entitled to be heard upon appeal."

As to the second point, the rule requires that "thirty days after the filing of the transcript, the appellant shall file with the clerk his printed points and authorities with proof of the service of one copy thereof upon the attorney or attorneys of each respondent who shall have appealed separately in the superior court." It is further provided, however, that the time may be extended for good cause shown. In this case, the time was extended but the period thus enlarged had expired a few days before the motion to dismiss the appeal was given. Appellant, though, was ready and was granted permission to file its opening brief at the time said motion came on for hearing.

To excuse its failure to file the brief in time, appellant filed the affidavit of John T. Nourse, deputy attorney-general of the state, in which, among other things, he declared: "That he had charge of the litigation involved in the above entitled actions on behalf of the State of California, appellant therein; that on or about the 21st day of December, 1915, affiant filed in this Court his affidavit in support of appellant's application for an extension of time to file its opening briefs in each of said cases, setting forth that the appeals in each of said cases involved the question presented in the case entitled Deseret Water, Oil, and Irrigation Company vs. State of California, then pending before the Supreme Court of the United States, and that there was no attorney of record in the said. actions on appeal in this Court; that affiant believed that if any attorney should appear of record in said action, a stipulation would be entered into continuing the hearing of said appeals until the determination of said Deseret case; that the complaints in each of the above entitled actions were endorsed by Parker & Parker, as attorneys for each of the plaintiffs; that all of the proceedings therein were conducted by Pat R. Parker who on the 2nd day of January, 1915, became Judge of the Superior Court in and for the County of Mono . . that on numerous occasions the said Pat R. Parker informed affiant that his father, William O. Parker, had long discontinued the practice of the law, that he was no longer associated with him, and that he (William O. Parker) was not associated with him in any of said actions; . . . that said William O. Parker is not the successor to Parker & Parker and never 81 Cal. App. 46

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has been, but said firm has long since been dissolved; . . . that said William O. Parker never has been at any time an attorney or counsel for any of the respondents in any of the above entitled actions. : that all the extensions of time to file appellant's briefs in said actions were obtained from this Court by the representatives of the Attorney General's office, located in the City of Sacramento and affiant had assumed that the time of appellant to file its said briefs was being protected in that manner and the representatives of said office assumed that affiant, intending to prepare the briefs in said actions, was protecting the time of appellant to file its briefs, and that by reason of these misunderstandings, and by reason of the press of official business of said office, including matters involving the recent primary election and preparation for the coming general election, the time to file said briefs was inadvertently allowed to expire."

It is further stated "that affiant was led to believe that another attorney would be substituted for said Parker & Parker and that he would be notified of the same so that he might obtain a stipulation continuing these cases, and that he received no such notice."

It has been often stated that courts in the determination of such motions as far as possible should lean toward a hearing of the case upon its merits. It may be said also that, manifestly, a large discretion is committed to the court in the exercise of its judgment as to whether a party should be relieved from such default. The rule itself is, of course, somewhat flexible and may be set aside when justice requires it.

We have no reason to doubt the good faith of appellant, and as we are impressed with the showing made to excuse the delay and believing that it is the better policy to consider the merits of the cause, the motion to dismiss the appeal in each of said cases is denied.

Chipman, P. J., and Hart, J., concurred.

[Civ. No. 1829. Second Appellate District.-October 20, 1916.] MARY WILLS, Respondent, v. SOUTHERN PACIFIC COMPANY, Appellant.

RAILROAD CORPORATION-FAILURE TO FENCE TRACK-KILLING OF DOMESTIC ANIMAL-RIGHT OF ACTION-CONSTRUCTION OF CODE.-The provisions of section 485 of the Civil Code, as that section existed prior to the amendment of 1915, giving a right of action against a railroad company for the killing or maiming of a domestic animal upon its line of road which passes through or along the property of the owner thereof, in case of the company's failure to fence the track, are not intended to be for the benefit of the owners of stock running at large, but the right of action there given exists only in favor of one having some interest in land adjoining the right of way of the railroad.

ID.-ACTION BY LESSEE-INTEREST IN LAND-FAILURE OF PROOF.-In an action against a railroad corporation for damages on account of the loss of certain horses of the plaintiff which were killed by a collision with one of the defendant's trains by reason of the negli gence of the defendant in permitting the gate in its fence inclosing its right of way to be left open and the animals to stray thereon from adjacent land, the right of the plaintiff in or to the land is not established by proof that she leased the land from a third party, without any further proof that such party owned the land, or any interest therein, or that he was in possession of it, or that the plaintiff obtained possession through him.

ID. CLOSING OF GATES-DUTY OF RAILROAD CORPORATIONS-ERRONEOUS INSTRUCTION.-An instruction declaring it to be the duty of a railroad corporation to keep gates in fences along its tracks closed on all proper occasions to prevent stock from adjoining lands from passing upon its right of way, is erroneous, in that it imposes upon such a corporation the absolute duty of keeping the gates closed, whereas in fact its only duty is to use reasonable care to keep them closed.

APPEAL from a judgment of the Superior Court of Tulare County, and from an order denying a new trial. W. B. Wallace, Judge.

The facts are stated in the opinion of the court.

Power & McFadzean, for Appellant.

J. C. Thomas, for Respondent.

CONREY, P. J.-Pursuant to the verdict of a jury, judgment was entered in favor of the plaintiff for the sum of six hundred dollars damages on account of the loss of certain horses of the plaintiff which were killed on the defendant's railroad track. The defendant appeals from the judgment and from an order denying its motion for a new trial.

· There is in the complaint an allegation of negligence by the defendant in running and managing its train whereby the horses were killed. The evidence shows that they were killed by a collision with one of defendant's trains. But there is no evidence of carelessness or negligence in the running of the train, and the judgment cannot be sustained unless a cause of action has been established upon another theory of the case arising from the provisions of section 485 of the Civil Code. We refer to that section as it existed prior to the amendment of 1915. It is therein enacted that "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. . . . ”

The provisions of the foregoing section are not intended to be for the benefit of the owners of stock running at large, but the right of action there given exists only in favor of one having some interest in land adjoining the right of way of a railroad. It has been held that the interest of a lessee in the land constitutes a sufficient ownership under the statute. (Walther v. Sierra Ry. Co., 141 Cal. 288, [74 Pac. 840].) And there are intimations that a licensee in possession of land under a license from the owner is included in the benefit of the statute. McCoy v. Southern Pacific Co., 94 Cal. 568, [29 Pac. 1110], where it was said that such license (in that case derived from lessees) did not confer upon the licensee any rights as against the railroad company which the licensors themselves did not possess; that he stood in the place of the lessees and possessed only such rights as they could have enforced.

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In the present action it is alleged in the complaint that on the twenty-sixth day of January, 1914, the plaintiff was the owner and possessed of certain horses, and that said horses. were lawfully upon certain described land, from which land the horses strayed in and upon the track and ground occupied by the railroad. It is alleged that the defendant so carelessly and negligently permitted its gates in its fences to remain open that it permitted said horses to go from the pasture of the plaintiff upon the said railroad track. These are the only facts alleged which in any way connect the plaintiff with any ownership or right of occupancy of land adjacent to the railroad. Unless such allegations can be construed as declaring that the plaintiff owned the land or was in occupancy thereof as tenant or licensee, it must follow that the complaint does not state a cause of action. Without deciding that the complaint is sufficient in this respect, we will assume its sufficiency for the purpose of considering the evidence bearing upon the supposed issue. And we will here note that the complaint was unverified, and that all of its allegations are denied.

It was shown that there was a fence separating the railroad right of way from the land described in the complaint; that there was a gate in the fence; and that on and before the date of the killing of the horses they were kept by the plaintiff in the field upon which that gate opened. The plaintiff testified that she leased the premises described in the complaint from one P. T. Clark, and the court received in evidence a document identified by the plaintiff, which was in terms a lease of those - premises by Clark to her. All of the foregoing evidence was received over objections duly made by defendant's counsel. No effort was made by the plaintiff to show that Clark owned the land or owned any interest therein, or that he was in possession of it, or that plaintiff obtained possession through him. So far as the record shows, Clark may have been in every respect an absolute stranger to said premises both as to title and possession.

There is evidence sufficient to establish the facts that the defendant negligently permitted the gate to remain open, and that the horses strayed from the field to the railroad tracks and were killed without any fault of the plaintiff. We have stated the evidence merely for the purpose of con