Indian chieftain. [volume] (Vinita, Indian Territory [Okla.]) 1882-1902, 1891-08-13
LIABILITY OF RAILROAD COM
PANIns,
For Stock killed on Their Roads
In the Indian Territory.

cation. Two cases were brought in
his court against Geo A. Eddy and
II. G. Cross, as receivers of the
Missouri, Kansas q Texas railroad
company, for damages for killing
stock, one by X. A. Briggs, and
the other by L. N. Kindrick;
U. S. Commissioner Court, First
Division, Indian Territory.
r. A. Briggs VS.. Geo. A. Eddy and
* G. 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 to-.
gether. In each case the plaintiff
seeks to recover damages Tor the
killing of stock running upon the
uninclosed railroad track of the
Missouri, Kansas & Texas railroad
company in the First Judicial
Division of the Indian Territory.
The general denial is pleaded by
the defendants.
Witnesses to prove the killing,
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 for
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 their
trains in order to free them from
liability for damages for killing
animals running at large and stray
in upon their tracks, and upon
whom is thrown the burden Of
proving such care, and what weight
is to be given to the fact Of killing,
considered alone.
Upon the first proposition but
little need be said. The only duty
which q railroad company owes to
the "owneI Of stock killed upon
'its track is, that the engineer
Sin charge of the train at
"thn time shall use ordinary or
reasonable care after the stock is
discovered by him, to prevent
"injury to it. (Supreme court Ark. E,
in y, 5. w. r., page 339.) This
fact being shown relieves the COM
pony from all liability
We will now consider the re-
naming propositions. These are,
upon whom is thrown the 0nus of
proving the want of ordinary care
on the part OF the railroad COM
pany, and what weight is to be
attached TO the fact OF killing, con-
sidered by itself
The burden Of establishing neg
gligence is ON the plaintiff, unless
the fact of injury is made prima
fdcie evidence of negligence
Whitaker & Smith on Neg, p. 81.
The fact of injury is prima facie
evidence in some states, to-wit; in
n. H., Ga. and S. c. In such cases
the burden is on the railroad COM
pany to show that it exercised all
reasonable diligence. Ibid.
The fact of injury is made by
statute prima facie evidence OF
negligence in Ark, Iowa, Ga,
Ala, Md. and KY. But this pre-
sumption may be rebutted by
proof Of care.-Ibid, p. 81 and 80,
Art. Alb.
This doctrine is also held in u.
5. Supreme Court, in Stokes VS..
Saltonstall, decided in 1S39-Book
10, U S. Supreme Court, p. 1S9.
In this latter case the defendant
was sued as a carrier, but no men
ton is made by the court that the
defendant was held liable because
the matter rested in contract or
otherwise.
In some Of the states the de-
cisions are both ways and the rule
is unsettled, but in most Of them
at this time it is held that the
burden of proving negligence is on
the plaintiff, with an evident and
growing inclination in favor of the
opposite rule. By late writers a
distinction is made as to presump-
tions OF negligence between cases
resting in contract and those not
resting in contract.
ln those resting in contract, the
mere happening of the accident will
be primn facie evidence of a breach
Of contract without further proof,
while in those not resting in con-
tract it must not only appear that
the accident happened, but the
surrounding circumstances must be
such as to raise a presumption
that it happened in consequence of
a failure Of duty on the part Of the
defendant towards the plaintiff.
IL will be observed that the law Of
liability for damages for negligence
in cases resting in contract and
those not resting in contract is pre-
cisely the same. The difference
lies only in the method OF deter
mining how to establish, or prove
the negligence. 1t is entirely a
question Of eyidence-of practice.
Why negligence should be pre-
sumed in cases resting in contract,
and not presumed, under the same
circumstances, in cases resting in
duty does enthusiastically appear,
and Tor this reason we apprehend,
arises the fact Of a growing incli-
nation OF the courts to disregard
the distinction herein stated.
Under this distinction, If John
.IOnQg takes nnggage on the rnil r.