McLeod v. Atlantic Coast Line R. Co.

• Decision Date: 28 October 1912
• Citation: 76 S.E. 19,93 S.C. 71
• Parties: McLEOD v. ATLANTIC COAST LINE R. CO.
• Court: South Carolina Supreme Court

76 S.E. 19

93 S.C. 71

McLEOD v. ATLANTIC COAST LINE R. CO.

Supreme Court of South Carolina

October 28, 1912

Appeal from Common Pleas Circuit Court of Berkeley County; S.W. G Shipp, Judge.

"To be officially reported."

Action by Joseph McLeod against the Atlantic Coast Line Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Mordecai & Gadsden, Rutledge & Hagood, and Octavus Cohen, all of Charleston, for appellant. E. J. Dennis, of St. George, for respondent.

WOODS J.

On the trial of this action for the recovery of the value of a mule killed by one of the defendant's trains, the plaintiff introduced evidence showing that the mule was killed by the train while grazing on his property, through which the railroad ran. To rebut the presumption of negligence by the defendant, arising from the fact of the killing, the defendant introduced the testimony of the engineman of the train to the effect that the train was running at the regular speed, and that the mule came on the track from behind a hedge or embankment so suddenly that it was impossible to stop the train before striking him. The circuit judge refused to direct a verdict in favor of the defendant, and the jury found a verdict of $250, the value of the mule.

The question made by the appeal is whether the evidence on the part of the defendant so conclusively rebutted the presumption of negligence arising from the fact of the killing that no other reasonable inference could be drawn than that the defendant exercised due care.

The rule in Danner's Case, 4 Rich. 330, 55 Am. Dec. 678, is thus explained by Chief Justice Simpson, in Joyner v Railway, 26 S.C. 49, 1 S.E. 52: "Briefly, that case decided that, in cases like that before the court, evidence by the plaintiff that his cattle had been killed by a railroad train proved by legal inference the absence of due care, --in other words, the presence of negligence --at least so far as to allow the plaintiff to rest and to await the defendant's testimony; the plaintiff being entitled to recover, unless the defendant's testimony removed or overthrew the prima facies thus made out by the plaintiff. It was a judicial determination of the effect which such testimony offered by the plaintiff should have in all such cases, and it was established from the necessity of the case. To state the rule and its effect somewhat more distinctly, we may say that, while, as a general rule, the plaintiff, in order to establish negligence which he has charged, and which is the gist of his action, should prove the existence of facts and circumstances, if within his power, sufficient to exclude the idea of due care, yet in cases like that below Danner's Case has established the principle (which may be regarded as an exception to the general rule) that proof of the single fact of the killing of plaintiff's cattle shall have the effect, in the first instance, of proof of all the facts necessary to show negligence; the court in that case determining, not that the plaintiff could recover without proving negligence, or that it was the duty of the defendant to disprove it in advance of the plaintiff proving it, but that the plaintiff's evidence was sufficient prima facie to establish it."

Applying this rule, the killing of the mule in this case was itself a probative fact which, in contemplation of law, tended to prove negligence, just as the fact of long delay in the delivery of a telegram, or injury of a passenger through an agency or instrumentality of a carrier, are probative facts tending to prove negligence of the telegraph company or the carrier. Such facts, having the force of...