The record-union., 1891-05-22
POINTS FOR LAWYERS.
The Supreme Court Puts Several of
Them on Record.
Chief Justice Beatty and Justice Nc
Farland Dissent in Tehama
Sheep Case.

Three opinions by the Supreme Court
were filed yesterday with Deputy
Clerk Goyan in this city. One is
in the case of Leo L. Mccoy (re-
spondent) VS.. the Southern Pacific
Company. The action was for damages
for killing McCoy's sheep by railroad
train in Tehama County. Mccoy was
the owner Of a band Of sheep which he
AYERS were lawfully grazing in field
adjoining the track near Rawson's switch.
He claims that by reason Of the failure of
the company to maintain good fence the
sheep strayed upon the track and were
run over and killed. Boyd Brothers were
in possession Of the ranch, and they sold
Mccoy the stubble on the place for past
uring sheep. The sheepherder drove the
band on the place and 'camped the
Sheep about one mile and q quarter from
the railroad. He remained until some
had lain down, apparently for the night,
and then went home The night was
rainy, and the sheep strayed to an open
ing III the fence and out upon the track.
a train running toward Red Bluff that
evening killed some of them, and return
ing the next morning ran over several
made by Boyd Brothers, with the consent
OF the section boss, for their private ac-
commodatiOn.
The Supreme Court holds that the
weight OF the evidence was with the con-
clusion Of the jury, and decides that the
Judgment should be affirmed.
From this opinion Chief Justice Beatty
dissents, and Justice Mcfarland also dis
agrees. He says in substance:
Il dissent. The Boyd Brothers were
clearly in possession of the land and the
fences. If they opened the fence they
certainly could not have recovered if
their sheep had gone through the opening
and been killed. McCoy's sheep were be-
ing pastured on land subject to the gen
eraI control of the land by the Boyds, and
II the sheep were injured by any miscon-
duct OF the Boyds, the latter were per-
haps, responsible to Mccoy for such in
jury. But if the Boyds kept the fence
open for their own convenience, neither
they nor anyone temporarily occupying
part OF the land for special purpose, I'M
der them, can complain of the company.
This proposition is practically admitted
in the prevailing opinion of the court;
but 1t IS said that this proposition was not
presented in the instructions asked by
the appellant. | think that the phrase
If the Boyd Brothers could not them
selves have recovered damages to their
stock under similar circumstances'-gi
in the courts instructions to the jury,
could not possibly have been I'M
derstood by the jury in any other
way than as meaning that, if the
sheep belonged to the Boyd Brothers.
and had escaped onto the railroad under
the circumstances under which plaintiffs
sheep so escaped, and the Boyd Brothers
could not recover, then plaintiffs could
not recover. | do not see how any intel
ligent jury could understand it in any
other way. / think that the Judgment
should be reversed.
4 NEVADA COUNTY CASE
Richards ct al, executors (respondents).
VS.. The Travellers Insurance Company
This case was appealed from Nevada
County, and was an action on an accident
insurance policy. By the terms of the
policy, Richards was to have a sum of
money paid him weekly in case of injury
to him by accident, and his estate was to
be paid 5000 in case of his death from
such injury.
During the life Of the policy said Rich
ards was killed. The jury returned q
verdict in favor of plaintiffs, and the in
surance company appealed. The Su-
preme Court affirms the Judgment.
TWO OTHER CASES.
Chittenden (appellant) VS.. Pratt, and
Chittenden appellant VS.. McRae. These
| cases, which were appealed from Placer
County, were heard on the same evil
dence, and were brought to the Supreme
| Court on appeal in one transcript. The
action involves the question Of the right
of the appellant to certain property.
The Supreme Court reVerSeS the iudp-