Virginian-pilot. (Norfolk, Va.) 1898-1911, 1900-05-13
COURT DECISIONS.
DlGESTED BY W. B. MARTIN.
EXCLUSIVELY FOR
VIRclNlAN-
Notes OF Cases Recently Decided,
Which are of Interest to
Our People.

MARCOM V. r. Sc A..A.. l.. RICO.
supreme Court of North Carolina.
March 20.1900.
A RAILROAD COMPANY IS NOT IL
ABLE FOR THE DEATH OF A
FIREMAN RESULTING FROM A
DEFECT IN ITS TRACK CAUSED
BY THE WANTON ACT OF a
TRESPASSER. UNLESS IT COULD
BY THE EXERCISE OF REASON
ABLD DILIGENCE HAVE PRE-
VENTED THE CONSEQUENCES
OF SAID ACT.
The Court says:
This Is an action brought by the adj
ministrator to recover damages for the
death of his intestatc, alleged to have
occurred through the negligence of the
defendant. The deceased was fire
man on defendants engine, which left
the track. resulting in his death. The
defendant contendcd that the accident
did not occur through it's own negll-
gence. but was the direct result of the
malicious act of some outside party. in
pulling out the spikes and pressing In
the end OF the forward rail-, thus MAX
ing what is called in railroad parlance
lack switch. The effect of such a
switch is to cause the wheels Oh one
side of the engine to to run Off the open
end OF the rear rail upon the ties, and.
as the iiange is on the inside Of the
wheel. to eventually force the engine
clear of the rails. Defendant further
commended that 1t was in no way re-
sponslble for such malicious act. and
could not have prevented its conse-
quenccs by any reasonable diligence.
This view was evidently taken by the
jury. who found for the defendant, and
there appears sufficient evidence to
justify their finding. The principles
governing the case at bar are well set
tied. 1t is the duty of every railroad
company to provide and maintain a
safe roadbcd, and it's negligent failure
to do so Is negligence. per sc. But.
while the company is held to q very
high degree of care. there must in all
cases be some element OF negligence,
TO justify a recovery; and 1t cannot be
held responsible for the wanton and
malicious act of an outsider, unless it
could by the exercise of reasonable dill
igence have prevented the consequences
OF such act. AS the law places upon
the company the positive duty OF pro-
vidinS safe track. including the in
cidental duties of inspection and re-
pair. Its unsafe condition. whether adj
United or proved. of itself raises the
presumption of negligence. This is al
ways the case where there is a failure
to perform q positive duty imposed by
law. The burden of proving such a
failure of legal duty rests upon the
plaintiff. but. when the fact is proved
or admitted. the burden of proving all
such facts as are relied on by the de-
PENDANT to excuse its failure rests upon
the defendant. Its plea then is In the
nature OF confession and avoidance.
When the defendant. in Its answer. ad-
mitted that the death of the plaintiffs
intestate was caused by the unsafe con-
dition of its track. the plaintiffs case
was practically made out for the time
being. and the further burden was at
once shifted to the defendant Its con-
tention that the accident was caused by
the malicious conduct OF some ono for
whom it was not responsible. and the
consequences OF whose act it could not
have prevented by any reasonable de-
gree OF care. was an affirmative de-
Tense. by it's very nature carrying with
it the burden of proof. These princi-
pies are correctly laid down in the
charge of the court. and. as we find no
substantial error in the conduct of the
trial, the judgment is affirmed.