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.

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

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.

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

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.)

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.)

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.)

Injury is prima facie evidence of negligence.

Judge HINES delivered the opinion of the court.

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 employés 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 of construing section 5 of chapter 57, General Statutes, which is as follows: "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."

In the absence of statutory provision to the contrary, the mere fact of killing is not enough to establish negligence. No one, while engaged in a lawful business, is responsible for inevitable accident resulting in injury, though the injury was the direct result or consequence of his own act; and when it is sought to recover for negligence, the burden of proof to establish it is on the one affirming its existence. In such case evidence sufficient to raise a fair presumption of negligence is enough to shift the burden of proof to the defendant, but until such evidence is introduced the party complaining is without standing in court. The statute quoted is in derogation of this rule, and grows out of the difficulty ordinarily supposed to exist with the plaintiff in making proof of facts presumed to be peculiarly within the knowledge of the defendant or its employés. Therefore whenever the consciences of those in whose breasts the fact, if in existence, is presumed to rest, are purged, the reason for the law changing the ordinary rule ceases, the prima facie case is overcome, and the plaintiff has failed to make out his

case.

It appears to us that the only safe and just rule in a case arising under this statute is, that the railroad company should be required, when in its power, to introduce as witnesses those employés who, from the circumstances of the particular case, would be presumed to know whether there had been any negligence on the part of the company; and when unimpeached, such witness or witnesses testify that there was no negligence, and the circumstances do not contradict them, the law is for the defendant. To hold otherwise would work manifest injustice and oppression, and would be a discrimination against one class of persons in favor of another whose rights of property are no more sacred.

In this case appellant could have done no more than was done. Every employé who could be presumed to know anything in reference to the matter was introduced and testified in effect that there was no negligence. So far as this record shows the witnesses are all unimpeached and unimpeachable, and there are no circumstances in the case tending to contradict the statements of these witnesses as to the absence of negligence.

Judgment reversed, and cause remanded with directions for further proceedings consistent with this opinion.

P. C. and ST. L. R. R. Co.

v.

JOHN MCMILLAN.

(Advance Case, Ohio. March 7, 1882.)

In an action against a railroad company to recover damages for killing live stock, the plaintiff must prove affirmatively that want of ordinary care on the part of the company or its employés caused the injury.

Such inference does not arise from the mere fact that the animal was killed.

ERROR to the District Court of Harrison County.

Plaintiff below brought an action against the railroad company to recover damages for the negligent killing of a mare. The evidence showed that the mare escaped from her pasture on the night of July 6th, 1872, and wandered upon the railroad track. During the night a rain fell and in the morning the hoof-marks showed that the mare had galloped on the track a distance of about forty rods to a point where she was found dead, having been struck by the engine of a passing train. There was some slight evidence tending to show that the night was dark and foggy. The railroad company introduced no evidence to explain or account for the killing. The jury returned a verdict in plaintiff's favor and judgment was entered thereon, which judgment was affirmed by the district court. It is claimed here, among other things, that the verdict was not sustained by sufficient evidence.

LONGWORTH, J.-This court held in Ruffner v. C. H. and D. R. R. Co., 34 Ohio St. 96, that no inference of negligence on the part of a railroad company arises from the mere fact that injury results from a fire caused by sparks from a passing locomotive; and in Railroad v. Lawrence, 13 Ohio St. 66, it was held that want of ordinary care must be proved affirmatively to authorize the recovery of damages for live stock killed by a train of cars. The rule is well settled that in such case the mere fact that the animal has been killed will not warrant a presumption of negligence on the part of the employés of the company. Even in those States wherein statutes have been enacted providing that proof of killing shall be of itself sufficient to cast upon the company the burden of proving that proper and ordinary care was used, the courts have said that but for such statutes, the rule would have been otherwise. 78 Kentucky, 621; 36 Árk. 452; Pierce on Railroads, 428.

In the case before us we are asked to say that the evidence showing that the mare ran a distance of forty rods in front of the engine was sufficient to authorize the jury to find that the engineer must have seen her and could have stopped his engine within that dis

tance; there being also evidence in the case tending to show that within that distance the heaviest freight train could be stopped. We should agree to this proposition were there anything to show that the engineer did see the animal or might have seen her had he exercised proper care in running his engine, in time to have avoided the injury; but upon this point the evidence is absolutely silent. Perhaps such inference might be authorized had the accident occurred in broad daylight; but how dark or foggy this night was the jury could not know. Indeed it may be true that the mare had galloped along the track some time before she was killed. In the total absence of evidence upon a material fact the jury were not warranted in guessing that negligence caused the injury. Judgment reversed.

CLELAND

v.

MINNEAPOLIS AND ST. L. R. Co.

(Advance Case, Minnesota. May 30, 1882.)

There being some evidence in support of the verdict in this case, the order of the district court refusing to set it aside as against evidence affirmed.

APPEAL from order of district court, county of Waseca.
Louis & Lesley, for respondent.

M. D. L. Collester, for appellant.

VANDERBURGH, J.-This action is to recover the value of plaintiff's cow, killed on defendant's railroad track. The question involved is solely one of fact as to the place where the cow was killed -whether when struck by defendant's engine she was standing on defendant's track, in a lane built across it for the convenient crossing of plaintiff's cattle, or whether she was at the time in an open place north of the lane, where for a distance of about 30 feet on each side of the track the defendant had neglected to erect any fence. It was conceded in argument that if she was in the former place at the time, the plaintiff ought not to recover, but if in the latter, defendant is liable. This was the question submitted to the jury, and the trial court has refused, in its discretion, to disturb their verdict. The only question for this court is to determine whether by any fair intendment the verdict for plaintiff can be supported upon the evidence. We think there was evidence on the part of plaintiff for the jury. They were entitled to judge of the place where the cow was killed by the place where she was

found-her position near the track, the distance she would naturally have been thrown or carried, as inferred from the evidence of the manner in which she was struck by the engine, together with other facts and circumstances in evidence. Keyser v. Railroad Co., 6 Am. and Eng. R. R. Cas. 581. We discover no error in law or

abuse of discretion by the trial court in refusing a new trial in this case entitling appellant to reversal. Kasson v. Railroad Co., 11 N. W. Rep. 124.

Order affirmed.

MCKISSOCK

v.

THE ST. LOUIS, KANSAS CITY AND NORTHERN RY. Co., Appellant. (73 Missouri Reports, 456. April Term, 1881.)

Where evidence on the part of the plaintiff in a common law action against a railroad company for negligently killing plaintiff's bull was very slight, barely sufficient to justify the court in submitting the case to the jury, and the court, at the request of the plaintiff, had instructed the jury that negligence need not be proved by positive and direct evidence, but that it would be sufficient if the jury were satisfied of its existence from all the facts and circumstances of the case; Held, that it was error to refuse the defendant an instruction to the effect that negligence on its part could not be inferred from the mere fact that the train struck and killed the animal.

APPEAL from Ray Circuit Court.

Chas. A. Winslow for appellant, cited Maher v. R. R. Co., Mo. 267; Pryor v. R. R. Co., 69 Mo. 215; Brown v. R. R. Co., 33 Mo. 309; Ward v. Andrews, 3 Mo. App. 275.

John Mason for respondent.

NORTON, J.-This is a suit to recover damages for the allegedkilling of plaintiff's bull by defendant in operating its train; upon a trial of which plaintiff had judgment for $40, from which defendant has appealed. It appears from the bill of exceptions that plaintiff's attorney admitted that the cause of action "was neither founded upon the 38th section of the corporation act, nor the 43d section of the double damage act, nor the 5th section of the damage act, but was a suit at common law." The only question, therefore, in the case is one of actual negligence, which the complaint alleges consisted in "not stopping the speed of the train or sounding the alarm whistle." The animal was killed on a dark night by defendant's train at or near a public crossing near the town of Orrick, the train being badly wrecked by the collision. There was evidence tending to show that the train was running from ten to twenty-five miles an hour, and it also tended strongly to show that the animal was first discovered on the track at the distance of sixty feet from the engine, and that after its discovery everything was