Indian chieftain. [volume] (Vinita, Indian Territory [Okla.]) 1882-1902, 1891-08-13

the courts must DO observed.
The statutes Of Arkansas declare
that the killing Of stock on any
railroad track shall be prima tac'e
evidence that it was done by the
trains, and in the same state the
Supreme court has decided that
when stock is killed or injured by
the railroad, the presumption Is
that the injury results nom the
want Of due care and skill, or
diligence on the part OF the com
pany's employees. 80, Ark. 4l3.
The court constituting the above
act declares that "the killing being
"shown, the presumption is that
sit was done by the trains, and
othat it resulted from want OF due
"care. AT common law the oaus
"of proving these facts was on the
plaintiff. .n-33, Art. SIG.
1t will be observed that the
above mentioned statutes OF Ar
kansas. do not declare in terms
that the fact of killing shall be |
prima facie evidence Of negligence,
but only that the killing on the
railroad track shall be prima tacte |
evidence that il was done by the
train. and then the court construes
the statutes TO mean that such
killing is primd fdcie evidence OF
negligence. Thus the court changes
the common law rule of casting the
onus Of proving negligence on the
=, plaintiff and places upon the de-
e fendant the burden of showing the
G exercise of the ordinary care. IT
. is thus change in the method or
u practice Of the trial court OF estab-
u ishing certain facts in case. Inc
l. law of liability is not changed,
7 only the rule Of evidence in es-
II tabiishing that liability.
In the Act organizing the U ,.
q Court in the Indian Territory the
e apractice, pleadings and forms OF
J. proceeding in civil causes are
n "made TO conform as near as may
~ nbe. to the practice, pleadings and
e aforms of proceedings existing at
y "the time in like causes in the
N q courts Of the State OF Arkansas
OF Under the subsequent act, APP
ut proved May 2, 1890, certain gen.
6, eral laws of the State OF Arkansas
are extended oven the Indian Ter
ut ritory. among which is Chapter ~
" as to the common and statute law
70 Of England by it the common law
on exists in the Indian Territory th'
er same as in Arkansas.
at The United States by adopting
or so largely the laws OF Arkansas TO-
Is the Indian Territory has virtual,
mt riyen it to be understood that tn
4, general polity Of that state shall 3
us the general polity of the lndial
M Territory. This fact of itself en-
titles the decision of the suprem
re- court of that state upon those stat
re, utes then extended over the India
OF Territory, as well also as upo.
are kindred statutes not speclall
m adopted, to more weight than deci'
be ions of courts of other states; an
on if the rule Of making the fact OF II
Jury prima faci6 evidence OF negi
eg- rence is a rule Of practice in tha
less state, then it necessarily folio"
ma under the original act Of the Te
= ritory that the same rule shoul
W obtain in the U. 5. Courts OF u
lc'e Indian Territory.
IN 1t is true that the chapter OF law
ses governing railroads in Arkans'
I'm, has not been extended over Il
all Indian Territory and they have /
force therein. But this fact do
by not necessarily impair the oblig
oi ton of our courts to regard, del
ia, to. and conform to the practice
pre- that state in regard to those al
by kindred laws, as enunciated by Il
~, highest tribunal of that stat
Counsel for defendants refer to Il
U. decisions Of the supreme court
vs. Arkansas upon the duty OF rallro
ook companies to exercise ordina
lo9. care to prevent injury to stock,
liant being the law which should COVE
len- this court and which we ha
the herein quoted and concurred wll
luse And vet that decision was ma
t or under the railroad law of that st'
which has not been adopted a
de- extended oyer the Indian Territo
rule With equal propriety we may
hem woke the decisions Of that court as
the the prima facie evidence Of the /
$ on OF injury in establishing ne!
, anu l genee.
! the 1t is evident that in A
RS a ansas the so-called American r
mp prevails, that is, allowing stock
'ases run az large. The common
not rule does not obtain there and c
seouentlv does not obtain in
; lng Indian Territory. No presumpt
VIII of contributory negligence arn
eacc from the fact that the owners ST
rool' straved upon the railroad track
ovn being like other uninclosed Ian
ln"1 and domestic animals have ri
tne 10 roam over all the uninclo
~ . oe land of the territory according
p.ou their peculiar habits and railr
lSe oi companies are only required to
p ,.g .r9 ercise ordinary care not to IN.
an, of them.
rance But there are other and COZ
and reasons for holding that the taC
. ne injury should be held prima
rdnca evidence Of negligence.
deter 1t is notorious that lhS lacts
proye circumstances connected with
iely a road accidents are generally ain
.ctice. exclusively in possession OF
e pre- railroad companies. Mr.. StaI
ltract, in his excellent WORK on ENiue
same says that "on a trlai el'her ~
ing in "or criminal eases the 9lnlt1l. .1 !,
lpear, produce evidence III eluoiua. !,
.hend, (which Is IN the power ol
incli- "party, or within his pee
regard knowledge shall be holden to
~every doubt against him.