Kelly v. Oregon Short Line Railway

• Decision Date: 22 November 1894
• Citation: 38 P. 404,4 Idaho 190
• Parties: KELLY v. OREGON SHORT LINE RAILWAY
• Court: Idaho Supreme Court

38 P. 404

4 Idaho 190

KELLY v. OREGON SHORT LINE RAILWAY

Supreme Court of Idaho

November 22, 1894

EVIDENCE-PRIMA FACIE NEGLIGENCE-BURDEN OF PROOF.-The evidence shows that respondent's bull was on the track; that the track was covered with snow; that the bull was black; that the track was straight for more than a mile; that the bull ran between the rails for some distance and was knocked off and killed. Held, sufficient was shown to establish a prima facie case of negligence, and put the party upon proof.

IDENTIFICATION OF ANIMAL KILLED.-One witness testifies that the animal had run with his band of cattle within a few days of the time of killing; another that he knew the animal well and examined it a few hours after it was killed. The owner described the animal, giving age, marks and brands. Held, the identity of the animal sufficiently established.

PROOF OF ACCIDENT.-The employees of appellant were the only witnesses to the accident, and if there was no want of due care it was incumbent on appellant to show it.

(Syllabus by the court.)

APPEAL from District Court, Bannock County.

Judgment affirmed, with costs.

Eden &amp Terrell, for Appellant.

No one saw this bull killed, and the only evidence of negligence is the fact of the dead bull being found near the track, which we think is not sufficient in view of the fact that section 2680 of the Revised Statutes of Idaho has been declared by this court to be unconstitutional and void. (Cateril v Union P. R. R. Co., 2 Idaho 576, 21 P. 416.) Negligence cannot be presumed, but must be affirmatively proved by the party alleging it. (Mynning v. Detroit etc. Co., 59 Mich. 257, 26 N.W. 514; Brown v. Congress & Baker St. Ry Co., 49 Mich. 153, 13 N.W. 494; Grand Rapid etc. R. Co. v. Judson, 34 Mich. 507; Asbach v. Chicago etc. Ry. Co., 74 Iowa 248, 37 N.W. 183.)

H. V. A. Ferguson, for Respondent.

Actionable negligence is the inadvertent failure of a legally responsible person to use ordinary care, under the circumstances, in observing or performing a noncontractual duty, implied by law, which failure is the proximate cause of injury to a person to whom the duty is due. (16 Am. & Eng. Ency. of Law, bot. p. 389.) As a rule, negligence is not presumed. But there are cases where the maxim Res ipsa loquitur is directly applicable, and from the thing done or omitted negligence or care is presumed. (16 Am. & Eng. Ency. of Law, bot. pp. 448, 449; 2 Thompson on Negligence, 1227-1235, sec. 3; Cooley on Torts, 796; Shearman and Redfield on Negligence, sec. 59; Wharton on Negligence, secs. 421, 422; Bigelow on Torts, 596; Kearney v. London etc. R. Co., L. R. 6 Q. B. 759; Holbrook v. Utica etc. R. Co., 12 N.Y. 236, 64 Am. Dec. 502.) "When the plaintiff has introduced evidence of negligence sufficient as a matter of law to charge defendant with liability, or has shown such a state of facts as creates a presumption of negligence, the burden of proof shifts to the defendant." (16 Am. & Eng. Ency. of Law, bot. p. 455; Pennsylvania Canal Co. v. Bentley, 66 Pa. St. 30; 2 Thompson on Negligence, p. 1235, sec. 8; Missouri P. R. Co. v. Foreman, 73 Tex. 311, 15 Am. St. Rep. 785, 11 S.W. 326; Bischoff v. Schultz, 5 N. Y. Super. Ct. Rep. 757; Giles v. Diamond State Iron Co., 7 Houst. 29, 8 A. 368.) "The extent of the duty of a railroad company as to stock on its track is, that the engineer shall use reasonable care, after the stock is discovered by him, to prevent injury to it; and it is error to charge that it is negligence for a railroad company to fail to keep a lookout for stock." (Kansas City etc. R. Co. v. Shaver (Ark.), 14 S.W. 864.)

HUSTON, C. J. Morgan and Sullivan, JJ., concur.

OPINION

HUSTON, C. J.

Plaintiff brings suit to recover the value of a bull alleged to have been killed by defendant corporation. The case was originally tried in justice court, where judgment was rendered for defendant. Appeal was taken to district court, where case was tried de novo, and verdict and judgment recovered by plaintiff, from which judgment defendant appeals to this court. The case comes up on bill of exceptions.

The questions raised and relied upon by appellant are: 1. The verdict of the jury, and the judgment, are not supported by the evidence, and are against law; 2. The court erred in refusing to give the peremptory instruction requested by defendant; 3. The instructions to the jury were ambiguous, uncertain, and misleading, and do not state the law with sufficient clearness.

The case was tried by the court with a jury. The only evidence offered was that on the part of plaintiff. After the plaintiff closed his testimony, defendant moved for a peremptory instruction in favor of defendant, which the court declined to grant.

The first point...