Kentucky Cent. R. R. Co. v. Talbot

• Decision Date: 28 October 1880
• Citation: 78 Ky. 621,1 Ky.L.Rptr. 356
• Parties: Kentucky Central R. R. Co. v. Talbot, & c.
• Court: Kentucky Court of Appeals

78 Ky. 621

1 Ky.L.Rptr. 356

Kentucky Central R. R. Co. v. Talbot, & c.

Court of Appeals of Kentucky.

October 28, 1880

Under the statute declaring that the killing or damaging of stock by the cars of a railroad company shall be prima facie evidence of negligence, the uncontradicted and unimpeached testimony of such employé s of the company as are presumed to know the facts that there was no negligence, overcomes the prima facie case of the plaintiff, and he cannot recover.

APPEAL FROM BOURBON CIRCUIT COURT.

J. W BRYAN FOR APPELLANT.

1. In an action against a railroad company alleging the negligent killing or injuring of stock, before a presumption of negligence on the part of the company can arise, proof that the company or its agents caused the injury must be clear and unmistakable.

2. The proof offered by appellant was more than sufficient to rebut the statutory presumption of negligence.

3. An instruction which does not tell the jury by what they are to be governed, in arriving at the value of stock or the damages sustained, is erroneous.

IRWIN TAYLOR FOR APPELLEES.

1. The hypothesis clearly established by circumstantial evidence must be accepted as true. (Starkie's Evidence, 496.)

2. An instruction which gives the law correctly on measure of damages, but omits to caution the jury that they are to be governed by the evidence, is not erroneous, especially when all the evidence supports the verdict. (Baum v. Winston 3 Met., 129; Craig v. Durrett, 1 J. J. M., 366.)

3. A peremptory instruction should be refused if there is any evidence before the jury tending to show a right of recovery. (Rucker v. Hamilton, 3 Dana, 41; Clark v Castleman, 1 J. J. M., 70; Shay v. Turnpike, 1 Bush, 109; United Society Shakers v. Underwood, 11 Bush, 276.)

4. An instruction to the effect that the engineer is not bound to watch for stray stock on the track (if in the discharge of his duty), was properly refused. (Louisville and Frankfort R. R. v. Ballard, 2 Met., 180.)

5. Injury is prima facie evidence of negligence.

OPINION

HINES JUDGE:

This action was instituted by appellees to recover damages for the alleged negligent killing, by the engine or cars of appellant, of a Short-Horn bull, valued at $700. Judgment was for appellees in the sum of $500.

The evidence conduced to show that the bull was killed by some one of the train of cars operated by appellant on the night of May 11th, 1878, and that he was worth from $500 to $700. Here the appellees rested their case, and appellant then introduced as witnesses all of its employé s who were connected with the management and running of all the trains passing the point at which the injury occurred, and on the night of the injury. All of these witnesses, seven in number testify that they were in the proper discharge of their duty, that the trains were on time, and running at the usual rate of speed, and that they saw no stock, and knew of no injury inflicted on stock by either of their trains.

The only question we will consider is, whether the evidence of negligence is sufficient to justify the finding of the jury. This involves the necessity...