#### COUNCIL SCOTT v. THE WILMINGTON AND RALEIGH RAIL ROAD COMPANY.*

The killing of a cow, or other animal on a rail road, by the train's running over it, is not, of itself, proof of negligence.

ActioN of TRbspass on the Case, tried before Bailey, J., at tbe last Term of Wayne Superior Court.

Tbe declaration was for negligently running their train upon tbe rail road track, by- which a cow,, the property of the plaintiff, was killed.

It was proved that, in 1851, about sun-rise in the morning, a cow, the property of the plaintiff, was seen by the witness on the side of the rail road belonging to the defendants, and notfar off from it, dead; that the cow hadbeen manifestly killed by the engine, or cars, in their passage over the road. No train had passed during the night. The mail train that had passed the preceding afternoon, was the last that had passed previously to his finding the animal, and, at that time, the witness was working not far from the spot where he found it.; that the whistle of the engine blew but once, as the train passed that spot; that the cars were going at the rate of twenty miles an hour; that the road in this part was straight, and the woods open, aiid that a cow could be seen on the track a mile distant; that the plaintiff lived about two hundred yards from the road, and his cows were- in the habit of feeding near the road ; and this- was known to- the plaintiff. The cars passed along at the usual time, on the evening before.

The Court charged the jury that, according to this state of facts, the plaintiff was entitled to recover. To which defendant excejited.

Yerdict and judgment for the plaintiff. Appeal by the defendant.

*Dortch,*for the plaintiff.

*JB. F. Moore*and *W. A. Wright,*for defendant.

*

 Judge Battle, being a stockholder in this company, took no part in the decision of this cause.

*433Pearson, J.

In the case of *Herring*v. *Wilmington and Raleigh Rail Road Company,*10 Ire. Rep. 402, the facts were nearly the same as are presented by this case, with this difference — there, the property destroyed was a slave, here, it was a cow. It was held, in that case, that the facts did not show negligence on the part of the defendant. ¥e consider that holding, decisive of this case. '

The plaintiff’s counsel, in the argument, admitted that the opinion of the Judge in the Court below could not be sustained, except upon the broad ground that, if a cow is killed by the rail road car, that fact itself is proof of negligence, and entitles the owner of the animal to recover, unless the defendant is able to rebut the presumption of negligence. He relied upon *Ellis v. Portsmouth and Roanoke Rail Road Company,*2 Ire. Rep. 138. That case, and *Piggot*v. *East Co. R. R.,*E. C. L. Rep. 22 J, upon which it is founded, are commented on, and explained in Herring’s case, where it is said, “ In both these cases fire" was communicated to the 'property of the plaintiff; in the one case, a barn, and in the other, a fence was set on fire by sparks from the cars. It was proven in both, cases that the cars had been running for along time, and *things remaining in the same*condition, the fact that fire was communicated on a particular occasion, was properly held to *beprima facie*evidence that it was the result of negligence.” The. opinion then proceeds to point out the distinction between a fence, or a barn, which are *siationa/ry,*and an animal, which has the power of locomotion. The conclusion is, that in respect to to the latter, the principle has no application, because things do not remain in the same condition. In the former, the plaintiff’s property *remains where it was,*and if it is set on fire, that fact, of itself, shows that there "was something wrong about the defendants’ work's, or their management', and throws on them the burthen of showing some unusal cause — such as a gust of wind. In the latter the plaintiff’s property *changes its position \*so, things do not remain in the same condition, and how the matter occurred is open for en-*434quiry; and as the plaintiff alleges negligence, it is for him to make the proof.

The opinion, then, discusses the question of negligence, as an open question, between a log of wood, a cow, and a slave, to which it is not necessary now to advert.; for, as stated above, the ruling below cannot be sustained, except upon the principle above referred to, which, as we have seen, has no application to a case where damage is done to property that has the power of locomotion, and which happens to be on the track, or to jump on it at the crisis. There is error.

Pee CubxaM. The judgment must be reversed and a *venwo do novó.*