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

The statutes Of Arkansas declare
that the killing of stock on any
railroad track shall be primd fdcic
evidence that it was done by the
trains, and in the same state the
court has decided that
when stock is killed or injured by
the railroad, the presumption is
that tho injury results from 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 1.-THE killing being
Shown, the presumption is that
sit was done by the trains, and
"that it resulted from want Of due
"care. AT common law the onus
"of proving these facts was on the
plaintiff. "-38, 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 fQcie evidence of negligence,
but only that the killing on the
railroad track shall be primd facic
evidence that it 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-
fendant the burden of showing the
exercise of the ordinary care. II
is thus change in the method or
practice of the trial court of estab.
ishing certain facts in a case. The
law Of liability is not changed,
only the rule of evidence in es-
tablishing that liability.
In the Act organizing the y. 5.
Court in the Indian Territory, the
practice, pleadings and forms Of
proceeding in civil causes are
"made to conform as near as may
"be, to the practice, pleadings and
'lorms OF proceedings existing at
"the time in ike causes in the
" courts of the State of Arkansas" F"
Under the subsequent act, ap-
proved May ?, 1890, certain gem
eral laws OF the State of Arkansas
are extended over the Indian Ter
ritory, among which is Chapter 20,
as to the common and statute law
of England by it the common law
exists in the Indian Territory the
same as in Arkansas.
The United States by adopting
so largely the laws Of Arkansas for
the Indian Territory has virtually
given it to be understood that the
general polity of that state shall be
the general polity of the Indian
Territory. This fact of itself en-
titles the decision Of the supreme
court of that state upon those stat
utes then extended over the Indian
Territory, as well also as upon
kindred statutes not specially
adopted, to more weight than decis-
ions of courts of other states; and
if the rule Of making the fact of in
jury primo facic evidence Of negli-
gence is a rule Of practice in that
state, then it necessarily follows
under the original act of the Ter
ritory, that the same rule should
obtain in the U. S. Courts Of the
Indian Territory.
1t is true tEat the chapter Of laws
governing railroads in Arkansas
has not been extended over the
Indian Territory and they have no
force therein. But this fact does
not necessarily impair the obliga-
ton of our courts to regard, defer
TO, and conform TO the practice of
that state in regard to those and
kindred laws, 4s enunciated by the
highest tribunal of that state.
Counsel for defendants refer 10 the
decisions Of the supreme court of
Arkansas upon the duty Of railroad
companies to exercise ordinary
care, to prevent injury to stock, as
being the law which should govern
this court and which we have
herein quoted and concurred with.
And yet that decision was made
under the railroad law Of that state
which has net been adopted and
extended over the Indian Territory.
With equal propriety we may in
woke, the decisions Of that court as to
the prima facis evidence Of the fact
OF injury in establishing negli-
gence.
Ii is evident that in Ark
ansas the so-called American rule
prevails, that is, allowing stock to
run at large. The common law
rule does not obtain there and con-
sequently does not obtain in the
Indian Territory. No presumption
Of contributory negligence ARISES
from the fact that the owners stock
strayed upon the railroad track-it
being like other uninclosed land
and domestic animals have q right
TO roam over all the uninclosed
land OF the territory according to
their peculiar habits and railroad
companies are only required % ex-
ercise ordinary care rot to injuro
them.
But there are other and cogonl
reasons for holding that the fact Of
injury should be held prima facic
evidence Of negligence.
1t is notorious that the facts and
circumstances connected with rail.
road accidents are generally almost
exclusively in possession Of the
railroad companies. Mf Starkie,
in his excellent work on Evidence,
says that son a trial either in civil
cor criminal cases, the emitting 60
"produce evidence in elucldalion,
(Which is in the power Of the