Indian chieftain. [volume] (Vinita, Indian Territory [Okla.]) 1882-1902, 1891-08-13
LIABILITY OF RAILROAD COM
PANIES,
For stock KILLED on Their Roads
in the Indian Territory,

On Saturday, July 10Th, Com
missioner Mason rendered de-
sision SO important to many OF our
that we have requested OF
him a copy Of the same for publ
cation. Two cases were brought in
his court against Geo A. Eddy and
II. q. Cross, as receivers Of the
Missouri, Kansas 4 Texas railroad
company, for damages for killing
stock, one by r. A. Briggs, and
the other by l.. N. Kindrick'
u. S. Commissioners Court, First
Division, Indian Territory.
r. A. Briggs vs.. Geo. 4. Eddy ana
II. @. Cross, as receivers OF the
Missouri, Kansas & Texas rail-
road company
l.. N. Kindrick VS.. same.
These two cases are Of the same
character, were tried on the same
day. conducted by the same coun-
sci. and will be considered 70,
qether. III each case the plaintiff
seeks to recover damages tor the
killing Of stock running upon the
uninelosed railroad track OF the
Missouri, Kansas q Texas railroad
company in the First Judicial
Division of the Indian Territory.
The general denial is pleaded by
the defendants.
Witnesses to prove the klilihg'
and value the animals killed have
been examined on the part OF the
plaintiff, but no evidence has been
| furnished by the defendants except
that elected from the testimony OF
witnesses for the plaintiffs. Coun-
| sci have submitted the cause Tor
the decision Of the court without
argument.
The important questions to be
determined in these two cases, are
the degree of care required OF rail
road companies in running then
trains in order to free them from
liability for damages for killing
t animals running at large and stray
f IN upon their tracks, and upof
whom is thrown the burden o
I proving such care, and what weigh
is to be given to the fact OF killing
considered alone.
Upon the first proposition bu
i little need be said The only dut,
h which a railroad company owes y
: the "owner Of stock killed upol
! ats track is, that the enginee
y "in charge Of the train a
= "the time shall use ordinary o
"reasonable care after the stock
discovered by him, to preyer
4 siniury to it. (Supreme court ARK
ie in IL, S. w. r., page 339) I'M
r fact being shown relieves the con
le pany from all liability.
,e We will now consider the r.
naming propositions. These arr
upon whom is thrown the oaus
- proving the want OF ordinary cal
i on the part Of the railroad con
le panv. and what weight is TO
O. attached to the fact Of killing, COZ
Of sidered by itself,
or The burden Of establishing ne
- qligence is on the plaintiff, unle
!" the fact Of injury is made pr'n
facie evidence Of negligence.
Whitaker & Smith on Negn P. y
= The fact Of injury is prima td'
ne evidence in some states, to-wit'
,e- N. H., Ga. and s. G. In such cas-
the burden is on the railroad COZ
~ pany to show that it exercised
- reasonable diligence. Ibid.
'se The fact of injury is made
cts statute prima facie evidence
we negligence in Ark, Iowa, q
his Ala. Nd. and Ky. But this p
- sumption may be rebutted
u proof of care.-Ibjd, p. 81 and
Art. Alb.
N. This doctrine is also held in
y s Supreme Court, in Stokes
wv Saltonstall, decided in lS39-Bo
IN 10. u S. Supreme Court, P. !
I'VE In this latter case the detend'
are was sued as a carrier, but no M
ito ton is made by the court that
NV defendant was held liable beoal
III the matter rested in contract
reu otherwise.
in In some of the states the
Fer cisions are both ways and the T
- is unsettled, but in most Of tn
A"s at this time it is held that
not burden Of proving negligence IS
the the plaintiff, with an evident
yhy growing inclination in favor OF
opposite rule. By late writer
distinction is made as to presul
we're tions OF negligence between ca
oan resting in contract and those
~. resting in contract.
cui' In those resting in contract,
ate, mere happening of the accident
r. be prima facie evidence of bre
ym of contract without further pr
- while in those not resting in
any tract it must not only appear
mes the accident happened, but
be surrounding circumstances mus
but such as to raise a presump
if that it happened in consequent
=, a failure Of duty on the part OF
A. defendant towards the plan
'o'e It will be observed that the la
rthy liability for damages for neglig
also in cases resting in contract
more those not resting in contract is
w. cisely the same. The diner
W. lies only in the method OF d
lrty- mining how to establish, or p
the negligence. 1t is entire
question Of evidence-ot prac
l me Why negligence should be
e in sumed in cases resting in cont
Is OF and not presumed, under the
al in circumstances, in cases restii
- duty does Enthusiastically apl
anu and Tor this reason we apprei
VIII arises the fact of a growing
pre- nation of the courts to disr'
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