Kentucky Central R. R. Co. v. Lebus
| Decision Date | 11 February 1879 |
| Parties | Kentucky Central R. R. Co. v. Lebus. |
| Court | Kentucky Court of Appeals |
APPEAL FROM HARRISON CIRCUIT COURT.
STEVENSON & O'HARA AND A. H. WARD FOR APPELLANT.
J. Q. WARD FOR APPELLEE.
JUDGE ELLIOTT DELIVERED THE OPINION OF THE COURT.
On the 15th day of December, 1876, the appellee Lebus brought this suit for the recovery of such damages as he had sustained by reason of one of appellant's trains of cars having run over and killed and crippled several head of his cattle.
The plaintiff Lebus alleged that on the 21st of June, 1876, he was the owner of certain cattle, which, without his knowledge, broke from his inclosure, and, without his fault, strayed upon the defendant's railroad track at a point about one and a half or two miles north of Cynthiana, and while so upon the track were, by the negligence and carelessness of the officers, agents, hands, and employes of the defendant, who were in charge of and had control of defendant's passenger-train, running north upon its said road, run upon, over, and against, and by negligence and carelessness killed and crippled. The plaintiff stated the number of cattle killed and crippled by the negligence of the defendant's agents and employes, and claimed that he had been damaged in the sum of $170.50.
The defendant denied the negligence and carelessness imputed to its agents and employes, and charged that plaintiff's cattle had strayed upon its road by reason of the plaintiff's negligence and carelessness.
Upon these issues the parties went to trial, and thereupon the plaintiff introduced evidence conducing to prove the number of his cattle that had been killed and crippled by the defendant's train of cars, and closed his evidence; and after the defendant had introduced evidence which conduced to prove that its agents and employes had been guilty of neither negligence nor carelessness, in running its train at the time the cattle were killed, the plaintiff offered to rebut such evidence, by evidence that the defendant's agents and employes had been guilty of negligence and carelessness in running the train of cars by which his cattle had been killed and otherwise injured, and to this evidence the defendant objected, and its objection being overruled it excepted; and this is the first error complained of.
By section 4, chapter 57 of the General Statutes, it is provided that "All railroad companies in this commonwealth shall pay full damages to the owners of horses or other stock they may negligently or carelessly kill or damage, by their cars or agents, along said road or its branches, within said commonwealth;" and by section 5 of the same chapter it is provided "That the killing or damaging of any horses, or other stock, by the cars along said roads or branches, shall be prima facie evidence of carelessness and negligence of said company."
As therefore, on the questions of negligence and carelessness in the killing of plaintiff's cattle, the burden of proof was on the defendant, it was proper after the close of defendant's evidence, to hear such evidence as the plaintiff offered pertinent to that issue.
We conclude therefore that as the plaintiff was not bound to introduce any evidence on the question of defendant's negligence till the close of its evidence on that issue, he had a right, after the defendant had concluded its evidence, to introduce the evidence on his side of such issue, for otherwise it seems to us that, in cases like this, where the plaintiff insists on his statutory right to require his adversary to assume the burden of proof as to negligence, etc., he thereby loses his right to introduce any evidence at all upon such issue.
It is contended also that the verdict was contrary to the evidence, and that the court erred to appellant's prejudice in its instructions to the jury, both by giving those asked by appellee, and refusing some of those asked by appellant.
The cattle of the plaintiff were killed by the defendant's train of cars on the evening of the 21st of June, 1876, as the train was running north.
The defendant's evidence conduces to the conclusion that the cattle of the plaintiff were not discovered on or near the defendant's railroad track by any of its agents till the front car of the train was within one hundred yards of them, and that immediately on such discovery the agents of defendant were notified to put down brakes and try to retard the speed of the train and avoid injury to the stock, but the speed of the train was such, and its distance from the cattle so short when they were first discovered, that in spite of all the efforts of the agents of the defendant to the...
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