in the Jangn'tge of the
"A person may have exercised all the care which the law required, and yet, In the light of hisnew experieuce,after an unexpected accident has occurred. and as a measure of extreme caution, he may adopt additional safeguards. The fegardhe has for the lives of others, the more likely he would 'be to do so, and it would seem unjust that he could not do so without being liable to have such actscoustrned ItS an prior nllgligenee; ,We thinksUl'h a rule puts a,n 'hn1'air inter"irtualJy ,holds out an itilfucement for continued negligence." In Railroad Co. v. Clem, (Ind. Sup.) 23 N. E. Rep. 965, it was held,
"In an action againstarailway,companyfor injury caused by alll'ged nl'gligence in tht! constructioll of its road, evidl'nce that after the accident the company changed and repaired its road is inadmissible to show neg!igence."
In Lang v. Sanger, (Wis.) 44 N. W. Rep. 1095, it was,beld that in RO;a<;tion fQr injuries alleged to have been received through the dangerous,cotiditiQn of a gl,lngway in the defEmdant'el saw-mill, evidence that after the 89cident defendant made repairs is inadmissible. The admission of the evidence over ,the objection of the defendant appears!to have been erroneous, both on principle and authority. The jury were led to believe by it that the bridgo ought to have been constructed with such braces originally. and that the omission to do so was negligence, which contributed to the result. The motion is allowed, and the verdict set aside. In the light of the former trial, this case ought to be settled by the parties, and doubtless will,and thereby save the expensJland labor, of a new .trial.
EDDY 6t
al.
tI. LAFAYETTE
et aI.
(OircuU Court of .Appeals. Eighth Circuit. February 15, 1899.) 1. 2. RULRO.lD COJIPANIES-KILLING STOCI-PRESUMl'TION OJ!' NEGLIGENCE.
In the absence of a statutory rule to that effect, the law. does not presume negll. gence from thefaot alone that stock was injured or killed by a railroad company. . '
SAME-LAWS IN INDIAN TERRITORY.
The statute of Arkansas, which changed the common-law rule by providing that the mere fact of injury or killing of stock by a railroad company shall ba prima jac#,e of negligenqe, was not put in force in the Indian Territory by Act Congo May 1800, S81, (26 St. p. 81.)
In Error to the United States Court in the Indian'l'erritory. Action by Ben F. Lafayette and Moses against George A. Eddy and· H. C. Cross, as receivers of the Missouri. Kansas & Texas Railway Company, to recover for stock killed on defendants' railroad. Verdict ana judgment for plaintiffs. Defendants 'brought this writ of error. Reversed. . ' Clifford L.JackBon, for plaintiffs in error. W. To Hutching8, for defendants in error.
'199 Before CAtDWE;LL, Circuit J'lldge,and Judges. ...., ,· ':' " District ,
CALDWEW-t, Circuit Judge.:; States cou1;1, 191'\ th:e .Indian
in error,who were the plaintiffs below, against 'the plaintiffs in to recover datp!lges:{Qr alleged to have been lcilledthropgh thenegligent of ,}e & the plaipti(f, in error, ,rece,i,vers of the road. cOlirt a jury, alld·a tor ;for the defend,ant out, this w*,o1 the co.urt belo)V gave, the following, among :t9. the Ju,ry: "Heretofore the ruling of this court has been that the only duty, which " raitr.oad ,coWl'a,ny owed to the Qwnerof stoclt killed UPOI;. i,ts tra<:k, was, that 'train at the time should use. .o,r ab.!e. c/lfe",af.t..er tbe . . ...;st.QC.k .. bave ...co.ve.red ..".:R;?;blm., inJury to 8Qch stock, thl8, bemg sbown. rehe,ved company {lOlQ liability. To this I still hold: . But I have ,also held that the oniul ofproviilg the want'ofordioar)' care on the part of the railroad compabyWaB on the plaintiff; :thatis, that::the burden of establishing negligence iwas on.:tIl6 plaintiff. that tbe fact,or the kiUing wasuot.primq, facie evidence of .. Qn the further:consideration 01 the act of congress estaplishing tbis court, and duly consid!'lring the decisions the supreme courts of both the and of the state of Arkansas. also the' modern writers of acknowloogl'd authority, I have determined to change my ruling on tbequestion involved. I sbaH now hold the law to ,be that tbefact of injury, when proved, shall be prima facie evidence of negligence,but that this tion may be rebutted by proof of care. It After citing authorities in support of this view of the law, and offering the defendants an opportunity to rebut the prima facie case of negligence arising, as,the cOurt held,: from the fact of killinK,an offer of .which the defendants declined to avail themselves, the court instructedfhe jury: "That it the jury shall belleve from the eVidence that ttw plaintuf was the owner'of the stockmentiooed:and described in the complaint. and that the Bame, or any part thereof, was killed by the raUrOl;l.d tl'ains. of the defendant". then they should find for the plaintiff, and aBS88S bis damages at the fair cash market value of the stock so killed." The giving of this instruction is assigned for error. In the absence of a statutory rule to that effect, the law does not presume negligence from the fact alone that tne animal was injured or killed by t.he railroad company. \ The general, but not quite uniform, doctrine of the authorities, in the abs8Pce of a is that the plaintiff muat show that the railroad company was andtbitt the law wlllnotpresume,and the jury is not authorized to infer, negligence frpm; the fact of kUling alOne: Vdlk-.nan v. RailwayCo: j (Dak.}'3.7 N. W.,Rep.781; EatQt/,. v. Navigatior, Co., (Or.) 24 Pac. Rep. 415; 1 Redf. R. R. § 126; Pierce, R. R.428; 8 Wood, Ry.Law, § 417; 11 Ror. R. R. 1389j 1 Thomp. §t5; 2 Shear. & R. Neg. § 419; Deer. Neg. § 298; Neg. §899; Railway Co. v. Wen<, 12 Neb. 76, 10 N. W·.Rep.
This
in
REPORTFlR,
vol. 49.
,. ' ·. ' reference to 'stock injured "or'killed by railroad companies upon their tracks, several' of the state.!l 'have passed statutes imposing more extensive dutielJ a'ndliabilities oIithe ·companies than walJiinposed by the common law/Some. of the states have enacted statutes making proof that an animal was injured or killed by a railroad company prima facie evidence of negligeneeon the partof the company. Astatutein Arkansas is construed by the supreme court of that state to have this effect. The court said: ; " ' "The true constrlictlon of the actin question is that, the killing being shown or confessed, the presumption ls that it done by t,he train, and it w!,nt, of care. At common law, the on1Mof proving t,hese facts was on 00. v. l'a1l1U1, 83 Ark. 816, 824. But the'statuteof Arkansas, here referred to, was not·llomong those put 'n,force in the Indian Territory by the act of It will be observed that the rule in that state,'that, the killing being shown, the law presumes that it resulted from negligence on the part of the railroad company,is,groun,ded a that the court .declares that at onus of proving, the negligencew8.s on the plaintiff. The plaintiff must prove the negligence as well as the killing; but,. as we polntedout in the case of Rauway 00. v. Washington, 49 Fed. Rep. 347, (at the present term,) these facts may be proved by circumstantial evidence,an,d, as .is shown, it is not such a difficult task as seem to suppose to prove .facts and circumstances from which a jury might rightfully infer both the killing the negligence. But in that territorrtbe inferenoe in such cases is not one of law,. but of fact, to .be drawn· by the juryJrom all the evidence in the case. The judgment of the court below is reversed, and the cause· remanded, with instruotions to g;rant a new trial.
pac.'.ftep. 910." ' ',. .
456; 'Milbum'v. 8e Mo. 104; Rm7wayCb. v.(Jeti!erl'21 Fla. 669; Railway Co. v. BolBon, (Kan.) 14 Pac. Rep. 5; Walshv. Railroad 111; Railway 00. v.Betta, (Colo. Sup.) 15 Pac. Rep. 821; Hei81eell(J:3 Amer;'&; Eng. R. Cas;, 555; Rauroad{]o. v. M"cM&n,37 Ohio St. 554; Railway Co. v. Hender8on,' (Cold. Sup.) 13
on
EDDY
et ale .,·. DULANEY·
(O£rauftCo'Urt of AppeaZ" Efqh.fh O£rCUit. February 15, 1891.)
'Before CALi>WELL,Circuit Judge, and JUdges.
In Error to the United States Court in the Indian Territory. Olifford L.Jackson, for plaintiffs in error. e. B. Denl80n and N.B. 'Maxey, for defendant in error. SHlliAS
and
THAYER.
District
C.ALbWELL, Circuit J.tldge. This action was commenced bytbe plaintiff below to damages for the alleged negligent killing of his cattle by defendants below·whileopel'ating the Missouri, Kansas & Texas Railway. as